Public Defenders: Pragmatic and Political Motivations to Represent the Indigent (Criminal Justice (Lfb Scholarly Publishing Llc).) 159332068X, 9781593320683, 9781593321628

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Criminal Justice Recent Scholarship

Edited by Marilyn McShane and Frank P. Williams III

A Series from LFB Scholarly

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Public Defenders Pragmatic and Political Motivations to Represent the Indigent

Michael Scott Weiss

LFB Scholarly Publishing LLC New York 2005

Copyright © 2005 by LFB Scholarly Publishing LLC All rights reserved. Library of Congress Cataloging-in-Publication Data Weiss, Michael Scott, 1969Public defenders : pragmatic and political motivations to represent the indigent / Michael Scott Weiss. p. cm. -- (Criminal justice : recent scholarship) Includes bibliographical references and index. ISBN 1-59332-068-X (alk. paper) 1. Public defenders--United States--Attitudes. 2. Legal assistance to the poor--United States. 3. Right to counsel--United States. I. Title. II. Series: Criminal justice (LFB Scholarly Publishing LLC) KF9646.W45 2005 345.73'01--dc22 2004023827

ISBN 1-59332-068-X Printed on acid-free 250-year-life paper. Manufactured in the United States of America.

Contents

1.

A Study of Public Defender Motivations

1

2.

Defense Attorneys in the Criminal Courts

11

3.

Challenges of Public Defense

23

4.

A Qualitative, Semi-Structured Interview Study

35

5.

Pragmatic Motivations

51

6.

Legal and Constitutional Motivations

93

7.

Altruistic Motivations

117

8.

Anti-Establishment Motivations: Critical Motivations, Part I

145

Anti-Police Motivations: Critical Motivations, Part II

163

Anti-Prosecutor Motivations: Critical Motivations, Part III

197

Anti-Judge and Anti-Corrections Motivations: Critical Motivations, Part IV

245

Public Defender Motivations: Discussion and Implications

271

9.

10.

11.

12.

References

287

Appendix: Interview Guide

295

Index

297 v

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Acknowledgements

I am grateful to many people for helping to make this work possible. Thanks to Alissa Worden, who provided me with guidance and encouragement throughout my graduate work and throughout this study. I am particularly thankful for her careful reading of several drafts and her invaluable advice, constructive criticism and insightful suggestions as this project was conceived and undertaken. I am also greatly appreciative of the assistance afforded by others at the University at Albany: Shadd Maruna, whose detailed feedback on both methodological and substantive issues were essential to the development of this research, Jim Acker, Graeme Newman, and Tom Church. I owe much to the public defenders who were part of this study. They were both gracious and forthcoming, and gave their personal time to this project. They must remain anonymous, but without them, this study could not have been carried out. Thanks as well to my colleagues at Rowan University and the Department of Law and Justice Studies, who provided both support and a working environment conducive to the production of serious research. Finally, and most importantly, I am eternally indebted to my parents, Phyllis and Bob Weiss, to whom this book is dedicated. They have provided- and continue to provide- love and support, and they have inculcated in their children a love of learning. Without them, none of this would have been possible.

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CHAPTER 1

A Study of Public Defender Motivations

PUBLIC DEFENDER MOTIVATIONS The indigent accused’s right to counsel in criminal prosecutions has long been an important part of the American legal tradition. Clearly, we must have public defenders. No one, however, is compelled to do this work. So why do the lawyers who become public defenders do what they do? This question addresses public defender motivations. It does not in the abstract ask merely why someone must be a public defender. Rather, it asks, “Why must that someone be you?” This subject is ripe for attention. Public defenders, after all, are compelling figures. Unlike most criminal justice practitioners, their job is to act in the interest of accused offenders rather than the forces that constrain their liberty. As such, defenders routinely confront legal, professional, and moral quandaries unique to their role in the criminal process. They must regularly represent guilty defendants, many of whom are accused of serious and violent crimes. Often, clients behave in an unpredictable manner and are uncooperative even with their own attorneys. Much of the defender’s job involves the routine negotiation of guilty pleas; this may not be electrifying work. Perhaps more importantly, there are those who see public defenders pleading their own clients guilty and become suspicious. Critics, therefore, have denounced defenders as incompetent bunglers lacking the skill to take cases to trial and aggressively seek acquittals. Defenders have also been likened to “double agents” who forego their adversary role and instead coerce clients into pleading guilty to help dispose the court’s caseload in a more expeditious manner. Pressures like these can make public defenders weary. As parttime defender Seymour Wishman (1991) has written: I wondered how many times I had been asked what I got out of being a criminal lawyer. “You spend most of your time with monsters,” “You’re in and out of depressing places all day long,” “The pay isn’t extraordinary,” “You’re looked 1

2

Public Defenders down upon by judges, other lawyers, and the public.” It wasn’t hard to explain why very few lawyers did criminal work and even fewer went on doing it for any length of time. I struggled to understand why I had remained in this work for more than fifteen years. (p. 231)

Paula Deutsch (1990) similarly muses: After a while, it really seems to hurt. The people you are representing lie to you; they have done horrible things to other poor people in their own neighborhood and they frequently take their frustrations out on you. Just as you, yourself are feeling blue about what is happening, you realize that society at large is not happy about what you’re doing either… Sometimes what really angers me is that I am feeling the same way about myself… (p. 390) Taking all this into account, observers have wondered why public defenders choose their calling. This issue goes beyond the initial employment decision. At least one author has reported that public defenders tend to remain in their line of work for long periods of time: McIntyre (1987) notes that although new Cook County public defenders are often counseled to leave the office after no more than two years, close to 50% of those hired between 1960 and 1979 remained there for five years, a lengthier tenure than that of lawyers employed in other major practice areas (pp. 79-85).1 It is worth asking: what is it about public defense and public defenders that might explain all this? Stereotypical notions of young, inexperienced and poorly educated recent law school graduates, exploitative con artists in cahoots with the prosecution, and ineffectual incompetents have reinforced the view that public defenders are low-grade practitioners who do what they do because they are unable or unwilling to find more palatable legal opportunities. There is, however, an alternative explanation: public defenders are impelled by a diverse array of motivations that overcome such obstacles and explain their commitment to their work. Although this is an intriguing possibility, there has yet to be a systematic examination of public defender motivation; this is all the more surprising in light of the abundance of material on the history of indigent defense, the defender’s legal and ethical obligations, and the defender’s role in negotiating plea agreements. In a much broader sense, the literature provides little scholarly assessment of the subjective outlooks of any criminal court practitioner. True, this has not gone completely unaddressed. Among scholars who have written on the

A Study of Public Defender Motivations

3

subject, however, the dominant focus has been on the sentencing decisions of trial court judges, with comparatively little about judicial views on other issues, or much about prosecutors or defense attorneys at all;2 as Eisenstein, Flemming, & Nardulli (1988) have observed, attempts to explain court processes by “focus[ing] primarily upon the backgrounds, attitudes and role perceptions of key decision makers” have been lacking because, among other reasons, they “typically looked at the link between attitudes and behavior for one aspect (usually sentencing) of one participant’s behavior (the judge’s)” (p. 8). Even beyond this limited treatment, such studies have been conceptually problematic. Despite purporting to investigate judicial perceptions, they tend to offer hypotheses based upon assumed attitudinal orientations and to make inferences about specific subjective outlooks in order to explain relationships between background variables on the one hand and court outcomes on the other (e.g., Spohn, 1990; Uhlman, 1978; Gruhl, Spohn, & Welch, 1981; Welch, Combs, & Gruhl, 1988). This study, then, intends in a systematic manner to examine an underresearched area of inquiry- public defender motivations- without falling into the pitfalls that have ensnared previous research professing to study the subjective outlooks of criminal court actors. In addition, though social scientists have studied the criminal courts for many years now, no theoretical approach has provided a convincing or comprehensive explanation for court activities. There have been few attempts, moreover, to integrate theoretical propositions and whatever empirical findings do exist about practitioner outlooks into larger theories of criminal courts processing. In their zeal to account for what they claim is the informal and collaborative behavior of court officials, many researchers seem to have de-emphasized the fact that courts are composed of individual actors who bring to their work individual perspectives with regard to their jobs, roles and responsibilities (Gibson, 1979). As Worden (1998) has pointed out: Because most of these studies had as their primary objective the mapping of the plea bargaining process or the characterization of local legal cultures, they understandably attended less to the finer points of lawyers’ attitudes than to more general assessments of their behavior in and out of court. (p.4) As a result of this approach, many researchers seem to have missed something important about the criminal courts. And though the link between subjective perceptions and actual behavior is often difficult to establish empirically (Gibson, 1978, 1981, 1983; Worden, 1995), there

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is an intuitive sense that such a nexus, in some form, does exist. An understanding of the motivations to do indigent defense work, then, may reveal much about the actual behavior of public defenders and the criminal courts within which they work. THE CONCEPT OF MOTIVATION “Motivation,” however, is a concept in need of amplification. In the field of criminology, researchers have expended much effort attempting to explain crime by examining the social, psychological, and biological factors related to criminal propensities. There have been few attempts to understand the criminal’s motivation, or to consider the extent to which this too might be linked to criminal and deviant behavior. As Jacobs & Wright (1999) assert: Motivation is the central, yet arguably the most assumed causal variable in the etiology of criminal behavior. Obviously, persons commit crimes because they are motivated to do so, and virtually no offense can occur in the absence of motivation. Though the concept inheres implicitly or explicitly in every influential theory of crime, this is far from saying that its treatment has been comprehensive, exhaustive, or precise. In many ways, motivation is criminology’s dirty little secret- manifest, yet murky, presupposed but elusive, everywhere and nowhere. If there is a bogeyman lurking in our discipline’s theoretical shadows, motivation may well be it. (p. 149) This state of affairs is hardly accidental. Wilson & Herrnstein’s (1985) indifference to the role of offender motivation, for example, is consistent with the thrust of conventional criminological thought: It is by no means clear that the most interesting or useful way to look at crime is by trying to discover the motives of criminals… The motives of criminal (and of human) behavior are as varied as the behavior itself; we come to an understanding of the general processes shaping crime only when we abstract from particular motives and circumstances to examine the factors that lead people to run greater or lesser risks in choosing a course of action. (p. 39) Though this may be an accurate expression of the predominant orientation of contemporary criminology, a lingering dissatisfaction with such an approach has emerged: there are those who believe that

A Study of Public Defender Motivations

5

there is considerable value and much that is interesting in understanding subjective forces like offender motivation (e.g., Fleischer, 1995; Jacobs & Wright, 1999; Katz, 1988; Shover, 1996; Wright & Decker, 1994, 1997). Inasmuch as these authors have been able to identify and explore discernable patterns of criminal motivation, their work suggests that when research does no more than “abstract from particular motives,” something essential is missing from attempts to understand “the general processes shaping crime.” Katz (1988) argues that researchers have been too preoccupied with what Wilson & Herrnstein refer to as “the factors that lead people to run greater or lesser risks in choosing a course of action” and have, as a result, neglected what he calls “the lived experience of criminality” (p. 1). In addition to the examination of such background factors, therefore, Katz maintains that criminologists must also probe offenders’ subjective processes; this advice is echoed by Groves & Lynch (1990), who write that “each of us has an experience of subjectivity that we enact in specific sociological contexts… The question, then, is not whether subjectivity exists, but whether and how criminology will choose to deal with it” (p. 359). As such, Katz draws attention to what he calls “the magic of motivation” (p. 4) and urges that those interested in truly understanding crime must “make comprehensible the minutia of experiential details in the phenomenological foreground” (p. 10). If, in the words of Jacobs & Wright (1999), offender motivation is the “dirty little secret” of criminological inquiry, practitioner motivation may well be an even more “murky” or “elusive” issue “lurking in the theoretical shadows” of criminal justice research. Criminal justice researchers, therefore, might take a cue from this sort of approach and depart from more well-established themes that focus on the institutional structures and policy initiatives of police, court and correctional agencies, as well as the behavior of individual practitioners both in their formal execution of administrative and legal directives and in the exercise of their discretion. In the same way that a growing body of criminologists have been guided by “the evidentiary logic of… analytic induction” (Katz, 1988, p. 11) to examine phenomenological foreground issues like offender motivation, criminal justice researchers might examine what it is that impels people to professional careers that address criminal and deviant behavior. The motivations of public defenders seem worthy of just such a study; to date, only legal scholar Charles Ogletree (1993) has commented directly on the subject. But what is “motivation,” exactly? Even among criminologists interested in offender motivation, there is little agreement on what the term means. We might, for example, think about motivation as Jack Katz has in Seductions of Crime (1988). When Katz asks “why are

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Public Defenders

people who were not determined to commit a crime at one moment determined to do so the next?,” he is seeking an understanding of the “distinctive sensual dynamics” that account for the offender’s sudden transition from an unmotivated state to a motivated one: Whatever the relevance of antecedent events and contemporaneous social conditions, something causally essential happens in the very moments in which a crime is committed. The assailant must sense, then and there, a distinctive constraint or seductive appeal that he did not sense a little while before in a substantially similar place. (p. 4) Seductions of Crime is a frequently cited source for researchers interested in offender motivation; Wright & Decker (1994; 1997) refer to the passage above to explain their view of motivation. Still, their approach is not quite the same as Katz’s; Wright & Decker invoke psychological notions of inner needs and suggest that motivation reflects an individual’s face-value rationalization of his or her behavior: they describe a “perceptual process through which the offense comes to be seen as a means of meeting an immediate need, that is, through which a motive for the crime is formed” (1994, p. 35; 1997, p. 37) [Italics added]. Direct overtures to the psychological literature addressing the meaning of motivation, however, are less than helpful. Even in the field of work psychology, where it is widely discussed, “there is no single universally accepted definition of motivation” (Arnold, Cooper, & Robertson, 1995, p. 210).3 It is tempting to think that motivation is so complex an idea that such ambiguity is deliberate. A potentially fruitful approach, however, lies in the writings of C. Wright Mills (1940), who portrays motivation as a sociological concept. Mills is reluctant to depict motivation entirely as a reflection of a person’s inner psychological drives; he writes that motives are less internal “‘springs’ of action” or “fixed elements ‘in’ an individual” than they are “the terms in which interpretation of conduct by social actors proceeds” [Italics in original]. Mills believes that the motivations people articulate should be construed as a verbal account of how they understand their behavior in particular interpersonal situations: As a word, a motive tends to be one which is to the actor and to the other members of a situation an unquestioned answer to questions concerning social and lingual conduct. A stable motive is an ultimate in justificatory conversation. The words which in a type of situation will fulfill this function are circumscribed by the vocabulary of motives acceptable for

A Study of Public Defender Motivations

7

such situations. Motives are acceptable justifications for present, future, or past programs or acts. (p. 907) [Italics in original] Although Mills refrains from examining motivation in terms of inner psychological drives, he nevertheless maintains that motivation is not merely a verbal explanation of a person’s conduct; even in sociological terms, behavior should be seen to some degree as linked to a preceding motivation: Often, anticipations of acceptable justifications will control conduct (“If I did this, what could I say? What would they say?”) Decisions may be, wholly or in part, delimited by answers to such queries… The vocalized expectation of an act, its “reason,” is not only a mediating condition of the act, but it is a proximate and controlling condition for which the term “cause” is not inappropriate. (p. 907) In sum, Mills’ conceptualization of motivation as “justificatory conversation” is not unlike what Wright & Decker propose. It also seems consistent with Ogletree’s (1993) view. Ogletree asserts that to ask about a defender’s motivation is to ask why public defenders do the sort of work they do and maintains that a defender’s motivation is more than “a theory that merely argues that it is defensible, excusable, or laudable to do that work” (p. 1242) or one that in the abstract “answers the question ‘why should it be done?’” (p. 1244). Rather, “a motivation persuades a particular person to take certain action and answers the question ‘why should I do it?’” (p. 1244) [Italics in original]. To be sure, Ogletree is a legal scholar and not a researcher; his writings, informed as they are by his expertise in the law and his experience as a public defender, are not attempts to frame a research question. Still, the fundamental premise remains the same: when people speak of their motivations, it is an interpretation of their behavior, expressed in terms appropriate to the mores that define specific social conditions. THIS STUDY This research represents the first step in what is hoped to be a larger attempt to systematically address the motivations of criminal court practitioners and begins by concentrating first on one specific actor: the public defender. Qualitative, semi-structured interviews were conducted with 48 defenders in three locations. It is worth noting that respondents were in general both obliging and reflective. Many had for some time contemplated the issues raised during our interviews and

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Public Defenders

seemed to welcome an opportunity to share their thoughts about why they do what they do. Indeed, the defenders interviewed here described a varied assortment of motivations, each of which might broadly be categorized as either “pragmatic” or “political.” Pragmatic motivations involve the occupational advantages indigent defense work provides for defenders themselves. The attorneys interviewed for this study, for example, made it clear that the ability to practice criminal law, the availability of trial work, and the opportunity to escape the burdens of private practice were, among other factors, important in their decision to be public defenders. Such motivations, it is important to note, are inherently apolitical and are likely to drive both prosecutors and public defenders. Whereas pragmatic motivations are inward looking and involve the tangible attractions of work in the criminal courts, the political motivations that animate public defenders express a distinctively ideological worldview; this is something that encompasses cynical perspectives about the social structure in general and the criminal justice system in particular. Many defenders, it seems, see themselves as working to protect poor, downtrodden and largely minority clients from police officers, prosecutors, and judges they view as unscrupulous in intention and behavior. What follows summarizes the public defender motivations discerned in this study: Public Defender Motivations •

•

Pragmatic Motivations o Trial Work o Variety and Autonomy o The Allure of Criminal Practice o Camaraderie o Lifestyle Political Motivations o Legal and Constitutional Motivations o Altruistic Motivations o Critical Motivations ƒ Anti-Establishment Motivations ƒ Anti-Police Motivations ƒ Anti-Prosecution Motivations ƒ Anti-Judge Motivations ƒ Anti-Corrections Motivations

A Study of Public Defender Motivations

9

What is especially interesting about all this is that no dominant motivation emerges from these interviews: there is no single impetus that can be said without hesitation to represent the most compelling reason public defenders do their job. Instead, the overwhelming majority of defenders each describe a wide range of different motivations; many even touch upon all of those set forth above. And although some defenders suggest that their principal motivations changed over time and others emphasized one or more motivations that were particularly evocative, even for these defenders, other motivations were nevertheless also quite meaningful. Public defenders, either individually or in the aggregate, should therefore not be viewed as impelled by one motivation or another. It is probably closer to the truth to say that what is described in this study is an array of motivations that together constitute a distinct public defender identity- so much so that a great many of the defenders interviewed here make it very clear that they could not see themselves doing any other kind of work, prosecution in particular.

_________________________ ENDNOTES 1 Although there is some indication that this varies by cohort (almost 60% of 148 defenders the hired between 1971 and 1975 remained public defenders after five years, while less than 40% of the 79 defenders hired between 1966 and 1970 did so), this rate still exceeds that of every other area of practice examined by McIntyre, including attorneys employed in solo practice, government work, small, medium and large firms, or as house counsel. “Unexpectedly,” she reports, “public defending is one of the most stable practice contexts…” (pp. 79-85). 2 There are some notable exceptions (including, for example, Carter’s (1974) study of prosecutor outlooks, Heumann’s (1978) account of the adaptation of new judges, prosecutors, private defense attorneys and indigent defenders, and Worden’s (1998) research on the subjective outlooks of small town defense attorneys. Nevertheless, the general point remains true. There are, however, a few reasonably persuasive explanations for this state of affairs. First, judicial conviction and sentencing decisions are among the most accessible measures available to courts researchers and has thus driven what is in many ways a judge-centered research agenda. Second, research on the subjective outlooks of trial court judges is a natural and logical outgrowth of the longstanding interest in the subjective outlooks and voting behavior of appellate court judges (e.g., Goldman, 1966, 1975; Segal and Spaeth, 1993; Ulmer, 1973). 3 The psychological research is vast; it encompasses “need theories” arguing that human beings behave so as to satisfy what Maslow (1943) identifies as

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physiological, safety, belongingness, esteem, and self-actualization needs (Arnold, Cooper, & Robertson, 1995, p. 214-215), “expectancy theories” aiming “to explain how people choose which of several courses of action they will pursue” (Arnold, Cooper, & Robertson, 1995, p. 217) and “goal setting theories” proposing that goal characteristics and attitudes toward them “determine behavioral strategies, which lead to performance within the constraints of ability” (Arnold, Cooper, & Robertson, 1995, p. 220).

CHAPTER 2

Defense Attorneys in the Criminal Courts

THE DEFENSE ATTORNEY AND THE ADVERSARIAL MODEL OF THE CRIMINAL COURTS Criminal courts research is often explicitly or implicitly premised upon a sort of “adversarial model,”1 the key elements of which researchers typically try to bolster or refute (Shapiro, 1981). The adversarial model begins with confrontational prosecutors and defense attorneys engaged at trial in the partisan presentation of evidence on behalf of their respective clients- the State and the defendant- and who attempt to counteract vigorously the evidence produced by the other side. Second, the adversary proceedings during which this will occur are presided over by a dispassionate judge, who favors neither side and is committed only to the fair application of the appropriate legal rules. Third, the evidence is presented to a neutral and unbiased factfinder- either a judge or jury- that has no outside interests aside from the objective determination of a winner and loser in the case at hand through either conviction or acquittal. The use of terms like “factfinder” or “trier of fact” indicate that the ultimate verdict is premised upon the discovery and collection of factual information pertinent to the case at hand and sufficient to guide the decision maker in arriving at a fair and accurate disposition; on this last point, West’s Encyclopedia of American Law posits that “proponents of the adversary system maintain that the truth is most likely to emerge after all sides of the controversy are vigorously presented” (p. 104). Of all the court participants, defense attorneys are clearly the most essential to the adversarial model. The normative paradigm can have little social, legal, cultural, political or moral currency unless this role is capably fulfilled. Their participation grants the process a significant portion of its legitimacy; they ensure that the competition is fair, that rules are followed and that outcomes are justifiable. At the very least, defense attorneys provide what Kaplan (1986) calls a “symbolic statement… about us and our society;” he argues that legal counsel should be provided for criminal defendants if for no other 11

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reason than to demonstrate that “we are a compassionate people and that in our society even the worst off (and it is hard to think of any who, as a class, are worse off than those accused of crimes) are entitled to have one person in their corner to help them” (p. 234). Objectives both egalitarian and kindhearted would be unattainable, moreover, if defendants were to act on their own behalf.2 In an era where the right to trial- though constitutionally guaranteed- is often foregone, the right to counsel is “treated as the new linchpin of liberty and equal justice” (McDonald, 1983a, p. 7). As Justice Sutherland wrote in Powell v. Alabama (1932), the famous Supreme Court case holding the Due Process Clause of the Fourteenth Amendment to require states to appoint counsel for indigent capital defendants: The right to be heard would be, in many cases, of little avail if it did not comprehend the right to be heard by counsel. Even the intelligent and educated layman has small and sometimes no skill in the science of law. If charged with crime, he is incapable, generally, of determining for himself, whether the indictment is good or bad. He is unfamiliar with the rules of evidence. Left without the aid of counsel, he may be put on trial without a proper charge, and convicted upon incompetent evidence, or evidence irrelevant to the issue or otherwise inadmissible. He lacks both the skill and the knowledge adequately to prepare his defense, even though he have a perfect one. He requires the guiding hand of counsel at every step in the proceedings against him. Without it, though he be not guilty, he faces the danger of conviction because he does not know how to establish his innocence. (pp. 68-69) In Gideon v. Wainwright (1963), the landmark case that declared the Sixth Amendment right to counsel applicable to the states, established a right to court-appointed counsel for indigent state felony defendants, and spurred the development of various methods for affording indigent defendants state-provided legal services, Justice Black poignantly emphasized the importance of the defense attorney for those too poor to retain their own lawyer: Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. This seems to us to be an obvious truth. Governments, both state and federal, quite properly spend vast sums of money to establish

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13

machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society. Similarly, there are few defendants charged with crime, few indeed, who fail to hire the best lawyers they can get to prepare and present their defenses. That government hires lawyers to prosecute and defendants who have money hire lawyers to defend are the strongest indications of the widespread belief that lawyers in criminal courts are necessities, not luxuries. (p. 344) Since then, the right to counsel has occupied an almost mystical place in the American cultural lexicon; in the popular account Gideon’s Trumpet (1964), journalist Anthony Lewis referred to the case as “one of those great occasions in legal history” (p. 11). Gideon is also one of those Supreme Court decisions that have resounded in public minds, creating and reinforcing expectations about the relation between law and society and, in particular, about defense counsel in the criminal courts. According to such notions, defense attorneys are to work diligently in representing their client’s interests: seeking acquittals at trial by probing the government’s case, confronting prosecutors with affirmative evidence, protecting defendants’ rights by challenging government investigations and exposing constitutional violations, and even standing up to excessive judicial authority when such action is required. In short, the defense attorney must serve as a zealous advocate for his client. Moreover, because criminal defendants are often disfavored and in possession of limited resources, entrenched in popular consciousness is the idea that their battle with the state has imbued their defenders with a sense of virtue. In addition to their adversary role, then, defense attorneys are often viewed- in theory, at least- as protectors of the falsely accused, defenders of the difficult to defend, and guardians of the integrity of the legal process, without whom a criminal prosecution would be little more than a government inquisition. Indeed, the image of criminal defense attorneys as savvy, passionate and noble fighters for underdog clients is illuminated by numerous figures, both historical and fictitious. A number of observers have commented on Perry Mason, the lawyer of popular novels and television, whose dramatic arguments and courtroom expertise has helped shape distinctive cultural notions of defense attorney role and behavior. “As rerun on late-night television,” Neubauer (2005) points out, “the fictionalized character of Perry Mason embodies our image of the defense attorney fighting to free his falsely accused client- and always succeeding” (p. 149).3 Atticus Finch, the inspired, white country

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lawyer of Harper Lee’s To Kill a Mockingbird (1960) is another character that fits this profile. In Lee’s classic novel, Atticus fought doggedly, both inside and outside a balconied and segregated southern courtroom on behalf of a black client falsely accused of raping a white woman. Though his efforts were tragically unsuccessful, his was nevertheless a striking moral victory that exposed racism and hypocrisy, and taught a lesson of courage, conscience and decency to both his children and his community. The motion picture version of To Kill a Mockingbird, moreover, featured a memorable performance by the actor Gregory Peck as Atticus, and is representative of a long tradition of Hollywood portrayals of heroic defense lawyers fighting for justice against substantial odds (Rafter, 2000). Famous real life defense attorneys have also captured the public imagination as crusaders against injustice. Alan Dershowitz, who some might say fits this description himself, writes in an introduction to Clarence Darrow’s autobiography (1996) that the famed lawyer’s name “will always be associated in the public mind with great advocacy on behalf of the downtrodden, the unpopular, and the controversial” (p. v). Noted defense attorney Martin Garbus may be another such example, recalling in a memoir (1971) that even conventional legal experiences “made me intensely conscious… of the glaring injustices inherent in our society, and I found myself becoming increasingly involved in the defense of society’s customary victims” (p. xii). Interestingly, popular images of prosecutors have been much more unsparing. Often, they depict imperious and overreaching officials who betray the public trust by seeking convictions without regard to either moral subtleties or plain truth. In his elaboration of the ethical ambiguities felt by black prosecutors who prosecute mostly black defendants, Ellis Cose (1997) notes that although “reality of course, is never so simple…, prosecutors are not generally perceived as terribly admirable figures, whatever their race. In popular culture, prosecutors are often the bad guys- mean-spirited, soulless bureaucrats who are dedicated to making life worse for everyone.” Indeed, one such example occurs when “they try to send people to jail (think of the Samuel Jackson character in A Time to Kill) who should probably be free.” In the end, Cose maintains that prosecutors are portrayed in a manner that is “almost always arrogant, often venal, [and] generally incompetent” (p. 91). Despite such views, legal scholars and social scientists have argued that the adversarial model and the images of defense counsel that derive from it are either simplistic or false. Portrayals of the criminal defense attorney, as such, have been altered accordingly. This picture, however, reveals a much more ambiguous figure.

Defense Attorneys in the Criminal Courts

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“DOUBLE AGENTS” OR EFFECTIVE ADVOCATES? DEFENSE ATTORNEYS AND THE ORGANIZATIONAL MODEL OF THE CRIMINAL COURTS Perhaps the most significant challenge to the adversary model is the longstanding recognition that trials are a relatively infrequent affair in most criminal courts; the adversarial model can hardly be descriptive if most cases never even reach the trial stage. A profusion of “organizational” challenges to the adversarial model began to appear in the late 1960s and 1970s to explain the fact that cases are typically disposed of through a guilty plea. (Blumberg, 1967|1974; Carter, 1974; Cole, 1970; Feeley, 1979|1992; Heumann, 1978; Neubauer, 1974; Levin, 1977; Mather, 1979; Rossett & Cressey, 1976; Skolnick, 1967; Sudnow, 1965). While these studies often differ greatly in their specific hypotheses, methodologies and conclusions, they nevertheless contain common elements that make the organizational model distinct. Despite some distinctions, organizational theorists view the courts as comprised of actors who recognize that professional expectations of adversarial formalism do not comport with the actual nature of their work. Concluding, therefore, that official performance measures (conviction rates for the prosecution, acquittal rates for the defense) are difficult to apply in any just or reasonable fashion, it is argued that continuing relationships among court actors lead to the collective development of pragmatic mechanisms that make possible the achievement of modified objectives: informally shared understandings that permit efficient case disposal through mutually agreed upon guilty pleas deemed appropriate for particular sorts of cases. Eisenstein & Jacob (1977|1991) use the term “courtroom workgroup” to refer to this sort of arrangement; Rossett & Cressey (1976) address much the same thing in their discussion of the criminal court “subculture of justice.” Indeed, the existence of “going rates” that reflect “what a case is worth” has been detailed by numerous observers who have used these exact expressions to refer to the assorted legal and extra-legal factors that are mutually understood by court officials to have an informal meaning that permits the efficacious disposal of cases by plea agreement rather than formal adversary trial (Blumberg, 1967|1974, pp. 104-105; Eisenstein, Flemming, & Nardulli, 1988, pp. 30-31; Feeley, 1979|1992, pp. 158167; Hermann, Single, & Boston, 1977, pp. 31-32; Heumann, 1978, pp. 76, 104; Kunen, 1983, p. 170; Silberman, 1978, pp. 268-270; Skolnick, 1966, p. 32; Uphoff, 1992, p. 446). Defense attorneys in the organizational understanding hardly reflect the image of confrontational trial crusaders that grows out of the adversarial model; unlike the fictitious Perry Mason, most of their work

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entails brokering guilty plea agreements. There is, nevertheless, much variation in how they have been depicted when going about this task. “Cooperative” Defense Attorneys Critics have portrayed cooperative criminal defense attorneys as both incompetents and as “double agents;” such allegations frequently come in concert (Barak, 1980; Blumberg, 1967|1974; Downie, 1971; Kappeler, Blumberg, & Potter, 1996; Lynch & Groves, 1990; Quinney, 1970; Reiman, 1995; Sudnow, 1965). In the first, defense attorneyspublic defenders especially- suffer from what McIntyre (1987) calls “the stigma of ineptitude” (p. 62): they are typically presented as harried, bungling, and poorly prepared lawyers of marginal talents who are too inept to properly advance their clients’ best interests. In a departure from the adversarial paradigm that plainly troubles many critics, moreover, defense attorneys are described as dismissive of the traditional presumption of innocence; they simply assume that their own clients are guilty. As Sudnow puts it, the public defender “and the D.A., as co-workers in the same courts, take it for granted that the persons who come before the courts are guilty of crimes and are to be treated accordingly” (p. 269). Even when a “recalcitrant” defendant insists upon a trial, according to Sudnow, public defenders and district attorneys merely conspire to produce a charade that refrains from challenging “the moral character of the administrative machinery of the local courts, the community or the police,” causes little trouble for “the routine motion of the court conviction process,” and provides services so minimally sufficient as to accomplish little more than to protect the defender from allegations of professional negligence (p. 273). While this “presumption of guilt,” of course, is intertwined with those shared informal understandings that permit cases to be settled by plea agreement, this is precisely what concerns critics like Sudnow, who disapprovingly declares that “the P.D. is part of the team” (p. 271). Depictions by the popular media have served to reinforce Sudnow’s observations (Goldman & Holt, 1971). Despite his harsh assessment of public defenders, Sudnow reasons that private defense attorneys provide more effective representation since “the central focus of the private attorney’s attention is his client” (p. 265). Blumberg, on the other hand, argues the opposite to be true. He reports that public legal aid attorneys in “Metropolitan Court” are regarded as more adversarial than private defense attorneys and, though part- perhaps unwillingly- of the court organization, they “can often negotiate a quite reasonable plea for a defendant because of [their] close relationship with the prosecutor’s office” (p. 105).4 All the same, he condemns the “perfunctory, administrative-bureaucratic version of

Defense Attorneys in the Criminal Courts

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due process that… serves as bland obeisance to constitutional principles” and “is characterized by superficial ceremonies and formal niceties of traditional due process, but not its substance” (p. 4). He is particularly scornful of privately retained “court regulars” who profess loyalty to defendants but instead use guilty pleas to quickly turn cases over so as to increase their total number of clients and, as such, their fees. Accordingly, he regards such lawyers as nothing more than “double agents” (p. 113) who, abetted by accommodating court officials, promote defendant interests only as a pretense designed to fool clients and justify their work. A familiar routine, Blumberg maintains, is the “‘all-out’ performance” stage managed by the defense attorney and involving the entire court organization: The judge and other court personnel will serve as a backdrop for a scene charged with dramatic fire, in which the accused’s lawyer makes a stirring appeal in his behalf. With a show of restrained passion, the lawyer will intone the virtues of the accused and recite the social deprivations that have reduced him to his present state… The incongruity, superficiality, and ritualistic character of the total performance is understood by a visibly impassive, almost bored reaction on the part of the judge and other members of the court retinue. Afterward, there is a hearty exchange of pleasantries between the lawyer and the district attorney, wholly out of context with the supposed adversary nature of the proceeding events. The fiery passion is gone, and lawyers for both sides resume their offstage relations, chatting amiably and perhaps including the judge in their restrained banter. No other aspect of their visible conduct so effectively puts even a casual observer on notice that these individuals have claims upon each other. In intricacy and depth, their relations range far beyond the priorities or claims of a particular defendant. (p. 114) Even in organizational studies that provide a more temperate account of the role and behavior of defense counsel, researchers agree that as a central feature of their professional repertoire, defense attorneys assume that their clients are guilty. Fundamental to these depictions, however, are lawyers who, faced with clear indications of their client’s culpability, employ such a presumption as a defense tactic permitting them to take advantage of the rational calculations of other court actors in order to secure favorable plea agreements. The prosecution, for instance, often seeks to minimize the inevitable uncertainty produced by the ever-present threat that contrary to the

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evidence, an unpredictable jury might render an outright acquittal or some other irregular verdict; the prudent expenditure of limited institutional resources is also typically an important consideration. The judge, in addition, is frequently determined to move the docket in order to avoid backlog and delay. Unlike the unsophisticated and overmatched defendant portrayed by Blumberg and Sudnow, among others, the most forceful proponent for a plea agreement in this view might actually be the client, who reasons that the penalties associated with a conviction brought about by a guilty plea is preferable to inconvenient, tedious, tiresome and costly court experiences (Casper, 1972; Church, 1979; Emmelman, 1996; Feeley, 1979|1992; Heumann, 1978; Mather, 1979; McCarthy & Lindquist, 1985; Uphoff, 1992). 5 To criminal defendants, then, instead of the sanction, “the process is the punishment” (Feeley, 1979|1992). In sum, this version of the organizational approach acknowledges that while the “reciprocal relationship” between prosecutors and defense attorneys may indeed be “based upon interests wider than those of the parties they represent, the State and the accused…, such tendencies toward cooperation- under existing conditions- do not demonstrably impede the quality of representation” (Skolnick, 1967, p. 52). It may be the case, in fact, that “such tendencies toward cooperation” are to the defendant’s advantage. Heumann (1978), for example, argues that in serious cases involving problems of proof, prosecutors will offer astonishingly lenient sentences as part of a guilty plea arrangement just to avoid the uncertainties of trial. Court Conflict Another important question goes beyond an assessment of the costs and benefits of cooperation and asks whether the guilty plea process represents something more complex for the defense attorney than an outright rejection of the adversarial model. Several organizational researchers, for example, have challenged the notion that nonadversarial, collaborative decision-making inevitably flows from the fact that the vast majority of criminal cases are resolved without formal adversarial trials. As Clynch & Neubauer (1981) contend: [The organizational approach] does not imply the absence of an adversary relationship among trial court actors. Even if a cohesive informal workgroup exists, its norms may result in a system of controlled conflict by delineating matters that can be disputed and providing “rules of the game” which govern the process for resolving disagreements. (p. 72)

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Thus, it has been emphasized that formal conflict and full-fledged trials, though rare, continue to play an important role in the criminal process. Researchers have reported that when there are real questions about the defendant’s guilt, or when the prosecution’s case is legally deficient in some respect, defense attorneys often actually do pursue the case to trial (Eisenstein & Jacob, 1977|1991; Heumann, 1978; Mather, 1979). Many observers, in addition, maintain that sentences imposed following the odd trial conviction help to define and adjust the informal “going rates” that are associated with “what a case is worth.” Such alterations will then be utilized to delimit subsequent plea negotiations. (Eisenstein & Jacob, 1977|1991; Jacob, 1980; McIntyre, 1987; Sudnow, 1965). Finally, as Skolnick (1967) and Carter (1974) note, formal and informal conflict, rather than cooperation, is sometimes simply the natural outgrowth of formally adversarial roles, especially when individual prosecutors or defense attorneys have a strong adherence to the adversary role in question. In his study of “La Loma County,” for example, Skolnick notes there were both prosecutors and public defenders who were considered by the other as “‘hatchet-men,’ as unreasonably and aggressively anti-defendant or pro-defendant” (p. 64). What is more, in a direct challenge to Sudnow, who conducted his research in the same office, Skolnick recalls observing several instances in which public defenders were quite aggressive during formal proceedings; one even involved a specific attorney used by Sudnow to demonstrate the cooperative approach. Essential to Skolnick’s vision of the criminal courts, then, is the understanding that while most defense attorneys, both public and private, tend toward a cooperative mode of representation: Not all members of the public defender’s office work as a “team” with the prosecutor; and the same man can sometimes appear “cooperative” and sometimes “hostile.” Thus, the notion of “teamwork” breaks down often enough to be notable and probably more often regarding the PD than leading private defense attorneys. (p. 64) In addition, it has been observed that a number of jurisdictions resolve large numbers of cases through processes which cannot be adequately described as formally adversarial, but which are not as informally collaborative as many organizational depictions might suggest; the line that supposedly separates the two is, in reality, often blurred. Mather (1979), for example, reports that “submission on transcript” trials function as a substitute for both guilty pleas and formal trials. Specifically, she discovered that at preliminary hearings

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in Los Angeles, after witnesses are presented and cross-examined, and after the customary finding of probable cause, the official record is then forwarded to a trial judge who reads the transcript, conducts a brief bench trial and then typically finds the defendant guilty and imposes a lenient sentence. Levin (1977), in addition, recounts that in Pittsburgh, many defendants pleaded not guilty without requesting a formal jury trial. Instead, their cases were resolved by short (usually less than 15 minutes) “trials” known as “slow pleas,” which he described as: Informal and abbreviated, and consist[ing] largely of the defense’s presentation of statements concerning the defendant’s allegedly favorable personal characteristics. Although irrelevant to his guilt or innocence, they are aimed at [mitigating] the judge’s sentencing decision…, since it is implicitly assumed by all parties involved in the process that the defendant is guilty of at least some wrongdoing. (p. 80) Finally, Emmelman (1996) depicts plea negotiations in “Smith County” as an exercise in “recursive decision making” in which indigent defenders and prosecutors engage in multiple episodes of negotiation that include the issuance of veiled threats as defense attorneys both assess plea offers and negotiate plea agreements in order to decide whether to settle at that moment or “proceed further.” She concludes that plea negotiations parallel formal adversarial proceedings; distinctions between them are hazy and, as a result, they should be conceptualized as part of the same convergent process. These authors, moreover, demonstrate what a number of other observers have also proposed: while other workgroup members, their sponsoring organizations, and environmental factors clearly influence defense lawyers, their behavior should be characterized less by collegial cooperation with the prosecution than by the use of informally adversarial non-trial strategies designed to promote defendant interests through plea settlements. Church (1985), for one, has suggested: In the rush to expose as false the theoretical pieties of the adversary system, social scientists may have overlooked aspects of the process in which real- as opposed to purely formal conflict is present… After years of scholars’ debunking the “adversary myth,” it may be that such a depiction is in need of… “bunking.” (p. 452) Like McIntyre (1987), who finds that although prosecutors and defenders mostly plea bargain, there exists “a great deal of tension

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(albeit under the surface)” (p. 146), Church notes that, in fact, these formal adversaries often evince great dislike for one another; in a challenge to the organizational model, in addition, he reports that prosecutors and defense attorneys have different perceptions about what constitutes suitable punishments and about the general propriety of plea negotiations.6 In his examination of the post-recruitment adaptation of new court actors to existing court organizations, moreover, Heumann (1978) asserts that although defense attorneys come to recognize that most defendants are both factually and legally guilty, when they can identify legal defects in a serious case and thus deliver a credible threat to go to trial, a prosecutor’s guilty plea offers will become “so lenient that he has little choice but to accept them” (p. 73).7 Many defense attorneys, in fact, “find that these adversary strategies lead to more successful deals for the defendant” than would be obtained by formal adversary proceedings (p. 75). This point is echoed by Carter (1974), who argues that “while it may seem paradoxical, the bond of reciprocity, which is sometimes thought to be the converse of adversariness, can produce the same kinds of results the adversary model presumes” (p. 20). CONCLUSION In sum, real disagreements about the role, character and behavior of defense counsel- and in particular public defenders- exist among those who think of the criminal courts as organizations. While critics have condemned defense attorneys as incompetents or as “double agents” whose assumption of their own client’s guilt results in, at worst, the imposition of undeserved sanctions and, in any event, the conscious neglect of elemental civil liberties, others have suggested that they are effective advocates who work outside of formal legal confines in order to obtain favorable outcomes for criminal defendants. In light of these discrepancies, significant questions exist as to whether the pre-existing research allows for a representative depiction of the behavior patterns and thought processes of criminal defense attorneys. This study, an examination of public defender motivations, may provide some muchneeded illumination.

_________________________ ENDNOTES 1 Eisenstein, Flemming, & Nardulli (1988) speak of the same set of characteristics as “the traditional ‘legal’ metaphor” (p. 5-7) while Feeley

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(1979|1992) describes them as constituting “the due process model” (p. 26). Feeley argues, however, that “although some seem to think that it does, the due process model does not require that all criminal cases go to trial; it requires only that the option is available to all who desire it. It does, however, assume that combat is vigorous, that the state is able to prove it case, and that the accused has the opportunity to present challenges and make defenses. While the trial is the formal and full-dress forum for doing this, motions and quiet but firm negotiations between the prosecution and defense can often accomplish the same ends” (p. 26) [Italics in original]. 2 The Supreme Court has nevertheless held implicit in the Sixth Amendment right to the assistance of counsel a right to self-representation. According to Faretta v. California (1975), a defendant who knowingly and intelligently waives his right to counsel will be permitted to defend himself as a matter of individual autonomy. 3 See also: Karnick (2003); Silberman (1978, p. 277-278). 4 Resembling Blumberg’s depiction, moreover, is Eisenstein & Jacob’s (1977|1991) account of confrontational indigent defenders and more accommodating private attorneys in Detroit. 5 Feeley (1979|1992), for instance, describes in detail how the “transaction costs” of the criminal process- the physical, psychological, temporal and financial effects of pretrial detention, bail, securing and dealing with a defense attorney, repeated court appearances, lost salary, and persistent uncertainty- can exceed even the worst sanctions that might be imposed upon a defendant after adjudication and sentencing. It is therefore rational, Feeley maintains, for clearminded defendants to plead guilty so as to “get it over with.” 6 In all four courts studied by Church, as it turned out, defense attorneys believed plea negotiations to be appropriate while prosecutors tended to prefer trials (p. 506). 7 Another interesting point to all this is that although these cases rarely result in a full-fledged adversary trial, the ultimate plea agreement is frequently preceded by formal practices undertaken as trial preparation, including the subpoenaing of witnesses and motion practice.

CHAPTER 3

Challenges of Public Defense

Former public defender Joseph S. Kunen (1983) has written that an indigent defense attorney “more often than not- much more often than not- [is] defending a criminal. That needs to be done, but it doesn’t need to be done by you…” (pp. 142-143) [Italics in original]. And this is but one of the moral quandaries and practical difficulties associated with public defense. An important question, therefore, asks about public defender motivations. Why do they do it? Why do public defenders take it upon themselves to do the sort of work that might just as well be left to someone else? To emphasize the significance of such questions, this chapter examines some of the things that make indigent defense difficult and complex. CHALLENGES OF PUBLIC DEFENSE A public defender’s actual experience in the criminal courts hardly resembles the familiar but fictionalized imagery associated with the likes of Perry Mason. Of course, the defense function will always reflect important American legal and ethical values involving the representation of those who might be falsely accused, as well as the protection of legal guarantees afforded to the factually guilty and innocent alike. A realistic appraisal of the daily life of a public defender, however, must acknowledge that the pursuit of such exalted doctrines carries a much less dignified downside that often makes their work frustrating and complicated. Heavy caseloads (Alschuler, 1979; Bellows, 1988; Blumberg, 1967|1974; Casper, 1972; Eisenstein & Jacob, 1977|1991; Gershman, 1993; Hermann, Single, & Boston, 1977; Lynch, 1997; McConville & Mirsky, 1986-87; McIntyre, 1987; Ogletree, 1993, 1995; Smith, 1993; Thaxton, 1995; Uphoff, 1992), insufficient training and supervision (Heumann, 1978; Lynch, 1997; McIntyre, 1987; Ogeletree 1993, 1995),1 resource constraints (Bellows, 1988; Casper, 1972; Gershman, 1993; Ogletree, 1993; Thaxton, 1995; Uphoff, 1992) and, at best, merely adequate compensation (Eisenstein & Jacob, 1977|1991; Hermann, Single, & Boston, 1977; McConville & Mirsky, 1986-87; McIntyre, 1978; Rossett & Cressey, 1976; Uphoff, 1992; Wishman, 1981) are well23

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documented examples of the sorts of administrative stresses that lead to high levels of public defender job dissatisfaction. Yet these are really exterior pressures that enfold the core moral dilemmas of the defender’s job. Constituting an even more evocative challenge to the Perry Mason image are the sometimes contradictory difficulties that are associated with what Heinz & Laumann (1982|1994) refer to as the “‘distasteful’ or ‘unsavory’ work [that] often requires the lawyer to associate with persons who are less than pleasant” (p. 60).2 Defender-Client Relations and Locations Indigent defendants are by definition poor, typically uneducated and likely from a social milieu that is personally unfamiliar to most attorneys; they are, in short, estranged in many ways from mainstream society. The relationship between public defenders and their clients may therefore be an uncomfortable one. Defenders, for instance, may find defendant behavior dangerous, self-destructive and difficult to understand (Alschuler, 1975; Bellows, 1988; Deutsch, 1990; Heumann, 1978; Kunen, 1983; Lynch, 1997; McIntyre, 1987; Rossett & Cressey, 1976; Thaxton, 1995; Wishman, 1981). Defendants, in turn, are often distant, dishonest, confrontational and suspicious of their own attorneys (Anderson, 1999; Bellows, 1988; Casper, 1972; Emmelman, 1996; Flemming, 1986; Gildin, 1994; Hermann, Single, & Boston, 1977; Kunen, 1983; Levine, 1975; Lynch, 1997; Mather, 1979; McIntyre, 1987; Ogletree, 1995; Rossett & Cressey, 1976; Thaxton, 1995; Wilkerson, 1972; Wishman, 1981). In particular, indigent defendants often believe that public defenders are too untalented and too uncommitted to actually advance their best interests. Consider, for instance, what Casper (1972) discovered when he asked his sample of 71 criminal defendants, “Do you think [your lawyer] was on your side?” Of the 49 represented by public defenders, only 10approximately 20%- answered in the affirmative (pp. 105-106). Many indigent defendants, in fact, have so low an opinion of their own lawyers that they either facetiously insist or actually believe that public defenders are not even attorneys. In response to Casper’s (1972) query as to whether he had a lawyer at his arraignment, for example, a felony defendant responded, “no, I had a public defender” (p. 59). Wishman (1981), in fact, recounts the exact same exchange (p. 53), while in a footnote, Thaxton (1995) reports that in his experience, “criminal defendants often refer to public defenders as ‘public pretenders’” (p. 186). This is something, finally, about which defenders themselves are acutely aware. One public defender interviewed by Flemming (1986), for example, commented that “the standard joke around this county is, ‘Do you want a public defender or a real attorney?’” (p. 257).

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This awkward situation is compounded by the frequent excursions defenders must make into the disagreeable places their clients are often located. Courthouse holding pens in the Bronx, for instance, are described by Feige (2001) as “a windowless place that smells of urine” (p. 59). Defenders must also travel to prisons to see convicted felons for whom they draft appeals, do post-conviction relief, or defend against criminal charges stemming from incidents that have occurred there, to jails for misdemeanants and pre-trial detainees, to psychiatric institutions for defendants requiring examination before trial or commission thereafter, and to juvenile facilities for those too young for adult incarceration. These are all places characterized by boredom, tension, anger, drugs, violence and sexual abuse, and though defenders are not themselves ordinarily endangered, they are emotionally affected by the misery of captivity, even if for them it is only temporary. As Bellows (1988) relates, such locations make him “sad” and “depressed;” upon leaving, “I always feel a palpable sense of relief. It is so good to be free” (p. 83). Still, he also grants: “we go to where our clients go. And our clients go to jail. And they go to mental wards. And, of course, they go to prison. And so, because our clients are locked up, we get ourselves locked up, if only for a few hours” (p. 82). The settings for the defender’s hearings, trials and plea discussions perhaps seem more attractive only because confinement cannot be worse. The criminal courthouse, particularly in urban settings, can be an especially unpleasant place; in a corporeal sense, it fittingly underscores the events that are adjudicated inside. Wice (1985), for example, observes that in many cities, the courthouse is “carefully tucked away from public view” (p. 44), as if such inaccessibility might make it easier for the public to forget its function and its necessity. Eisenstein & Jacob (1977|1991), in addition, provide a detailed portrait typical of the courthouses visited during the course of their research for Felony Justice: [They are often] dingy, drafty [and] old… marble columns stand in stark contrast to walls painted institutional green. The buildings are not air-conditioned; in the summer, when windows are opened, the noise of city traffic constantly interrupts court proceedings. The hallways of these courthouses are often wide, as if the designers anticipated that much of the public’s business would be conducted there rather than in the courtrooms. Public facilities such as cafeterias, waiting rooms, and restrooms are sometimes almost nonexistent. Finally, to enter many courthouses, one must go through a metal detector or be frisked; all weapons

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Public Defenders (including nailfiles and metal combs) and such contraband as tape recorders and radios are confiscated and checked. (p. 42)

Although Rossett & Cressey (1976) have observed that while “the nation has its share of seedy courtrooms,” they do allow that “most seem designed to stress the dignity and solemnity of the public trial” (p. 3). Even so, because trials themselves are rare events, most of the action takes place in surroundings that may be jarring even to those who are part of the courthouse’s inner workings. Wice (1985), for instance, describes “the cacophony in the hallways” caused by “animated conversations between lawyers, bail bondsmen, bailiffs, defendants, concerned family members, witnesses and a variety of other interested parties” (pp. 45-46). In the end, it is safe to say that a public defender’s work environment can be quite discordant. Guilty Clients and Morally Questionable Strategies Much more compelling and, as such, standing in stark contrast to the image of the idealized defense attorney is the fact that the clients of indigent defenders often have previous criminal records and, in the case in hand, are likely to be factually guilty (Babcock, 1984-85; Bellows, 1988; Casper, 1972; Dershowitz, 1982; Deutsch, 1990; Eisenstein & Jacob, 1977|1991; Feeley, 1979|1992; Gildin, 1994; Levin, 1977; Heumann, 1978; Kunen, 1983; Mather, 1979; McIntyre, 1987; Mills, 1975; Rossett & Cressey, 1976; Uviller, 1999; Vachss, 1993; Wishman, 1981). Though not a conventional public defender, Dershowitz (1982) nevertheless pronounces as the first of a series of “‘rules’ that seem- in practice- to govern the justice game in America today” that “almost all criminal defendants are, in fact, guilty” (p. xxi).3 Heumann (1978), moreover, suggests that a defender’s “raw material is not typically the railroaded innocent defendant; instead, it is an individual who, in all likelihood, is guilty of the offense charged or at least is guilty of an offense related to the charge” (p. 58). Lastly, Bellows (1988) adds that: One of the awkward truths about being a public defender is that you are in the practice of representing people who are, indeed, guilty as charged. We may cut spectacular deals with the government, obtain sentences which are absurdly light, and get cases dismissed for want of prosecution. But that does not change the facts: your clients are usually guilty. (Even the ones who get acquitted are often guilty). (p. 74)

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Such conclusions, it is worth noting, are not necessarily merely a rational supposition based on an experienced defender’s calculation of the facts and circumstances at issue; criminal defendants themselves often either readily admit their guilt or concoct stories that reasonably thorough investigation can expose as partially or fully contrived (Bellows, 1988; Casper, 1972; Church, 1979; Feeley, 1979|1992; Heumann, 1978; Kunen, 1983; Mather, 1979; McIntyre, 1987; Uphoff, 1992; Wishman, 1981). Defenders, moreover, are often keenly aware that the defense of guilty clients is not simply some rote, by-the-numbers affair that, by virtue of its legal sanction, inoculates them from the moral questions that accompany the tactics they are often compelled to pursue. Subin (1987), for example, has expressed great discomfort with the defense attorney’s obligation in certain circumstances to present what they know to be a false case at trial in the interest of securing an acquittal. Defenders might also be called upon to use their legal skills to impeach the testimony and besmirch the reputation of honest and respectable people in a way they know or suspect is not quite accurate in order to benefit a client who is likely to be guilty as charged. In his classic commentary on the ethical boundaries of the criminal defense lawyer’s responsibility to his clients, law professor Monroe Freedman (1966) goes so far as to suggest that a defender must permit perjurious defense witnesses to testify and must, in addition, discredit truthful adverse witnesses in order to protect lawyer-client confidentiality. This is, moreover, no ivory tower academic directive; Wishman (1981), in fact, opens his memoir by telling of a chance encounter with an angry woman who had been a complaining witness against a rape defendant he had previously represented (pp. 3-7). In that case, he had manipulated the report of a police doctor who had incomprehensibly neglected to note whether or not there was evidence of force or trauma on the woman’s body. During his cross-examination, Wishman argued that the lack of evidence of force or trauma suggested that the woman was not a rape victim but rather a prostitute who had brought the complaint because she had not been paid. What he deliberately neglected to mention was that the doctor’s carelessness was the real issue; there was also no evidence that there was not force or trauma. Pondering the woman’s resentment, Wishman noted that weighing heavily upon his conscience was both the “possibility that I had helped a guilty man escape punishment” and even more so, “the undeniable fact that I had humiliated the victim- alleged victim- in my crossexamination of her” (p. 6). Bellows (1988), to cite another example, recalls the “pungent experience” of defending a young man who confessed to a string of

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particularly brutal murders of elderly men by arguing that the confession, obtained by a detective considered by his fellow defenders to be “one of the most honorable, decent, honest, and compassionate men on the police force” was fraudulently procured (pp. 70-71): I cross-examined the detective for hours. The questioning was harsh, unfriendly. I intentionally sought to come across as hostile and disbelieving. I could not expect a jury to find this detective guilty of the malevolence with which I was charging him if it did not appear that I was angry, incensed by his conduct. When it was over, I did not really feel very good about the whole thing. I did what I had to do. I did not regret it then and I do not regret it today. But I had tried to make an honorable man appear dishonorable. And that is a sad thing to have to do, even if you are a public defender and even if it is your job. (p. 71) In sum, public defenders defend mostly guilty people. In promoting the interests of the guilty, it is often necessary to disparage the reputable. Defender successes- acquittals, dismissals or lenient plea agreements- frequently preclude the imposition of a morally deserved retributive sanction and for a number of defendants increase the opportunity to commit future and perhaps violent crimes. This leads some indigent defenders, in an effort to justify their work, to think of themselves, as Wishman (1981) had, “as a mere technician performing a surgical procedure (what-the-patient-did-after-the-operation-was-notmy-responsibility)” (p. 152). Yet at the same time, many defenders, including Wishman later on, experience misgivings and in introspective moments ask themselves the same kinds of questions their critics do: “how can you defend those people?” (Kunen, 1983); “how can you sleep nights?” (McIntyre, 1987, p. 139); “how can you do the work that you do and live with yourself?” (Smith, 1993, p. 46). The Stigmas of Public Defense In addition to the frequent representation of guilty clients, other features of indigent defense work also seem to create uneasiness in the minds of the public and soul-searching in the hearts of defenders. Inspiring portraits of the public defender have been further compromised by the recognition that the job is less about gallant legal crusading and spectacular courtroom theatrics than it is about the routine negotiation of guilty pleas. Much of this, moreover, is the result of behind-the-scenes decision-making of a sort ill-suited to public accountability, let alone administrative, institutional or legal

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supervision. Despite the argument that the negotiation of lenient plea agreements exemplifies effective defense advocacy, such informal and unconstrained activity ensures that suspicions of incompetence and coercion will be difficult to dismiss.4 After all, since guilty pleas, the negotiation of which are the defender’s primary activity, are themselves criminal convictions and trials, though infrequent, are very likely to result in convictions by jury verdict,5 constant and inevitable losses are the most observable result of defender activities. This is a situation bound to trigger public cynicism, because, as Silberman (1978) notes: One of the most fundamental “laws” of sociology is that what people think is real is real in its consequences. The courts are the institutional embodiment of our society’s commitment to the rule of law and to the idea (or ideal) of justice. It matters greatly that people perceive the courts as unjust, for this perception undermines respect for the law and belief in its legitimacy. (p. 297) Created in the minds of many observers, including the clients of public defenders, is what McIntyre (1987) refers to as the “stigma of ineptitude” (p. 62) that emanates from perpetual losing and is characterized by an inability to recognize that some outcomes- though losses, of course, in the technical sense- are actually the consequence of a defender’s legal skill and hard work that, in the end, produce a beneficial result for defendants.6 Indeed, for many public defenders, this stigma is internalized. Platt & Pollack (1974), for instance, cite the comments of one Alameda County defender: “the public defender is steeped in a tradition where you don’t win things, where you lose everything, where you’re constantly demoralized and where the DA’s always on top” (p. 251). In this regard, researchers have observed that defenders employ a variety of rationalizations that help them to “cope” with their frequent losing. McIntyre (1987, pp. 162-163), for example, reports that in Cook County, public defenders redefine what it means to win and lose. Examples of their attempts to “outwit defeat” include the satisfaction obtained from “almost-wins,” including lengthy jury deliberations after a trial and the “out-trying” of prosecutors by making them commit reversible errors or just generally look silly. Heumann (1978), moreover, observes that Connecticut defenders also do not consider all technical convictions to be losing propositions; they take satisfaction in their ability to obtain lenient plea agreements for obviously guilty clients.

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Reservations about “double agent” defenders are also deeply rooted in Silberman’s (1978) suggestion that “as the old maxim has it, the appearance of justice is as important as justice itself” (p. 255). In 1971, for example, the popular magazine Newsweek published a cutting, though perhaps sensationalized, rendering of criminal justice in the United States. Turning up in this piece is a Cook County public defender named Constantine Xinos, whose flippancy, profanity and racist language may cheapen even the more trenchant of his observations about the nature of the criminal courts; even critics, however, would be hard pressed to disagree with the substance, if not the tone, of many of his comments. Xinos, for example, boldly described the relationships among Chicago court personnel as being defined by certain “folkways” and “friendly” interactions: “‘It’s our court,’ Xinos says, ‘It’s like a family. Me, the prosecutors, the judges, we’re all friends. I drink with the prosecutors. I give the judge a Christmas present. He gives me a Christmas present’” (Goldman & Holt, 1971, p. 29). And though even organizational studies of the criminal courts have often portrayed a more adversarial- if informaldynamic, many contemplative defenders with neither the bravado of Xinos nor the scorn of Blumberg or Sudnow have expressed dissatisfaction with the fact that their work mainly involves arranging plea agreements, even if these outcomes are frequently favorable for the defendant. One of Heumann’s (1978) respondents, for example, presciently observes “it’s a funny situation with our system… I think substantial justice is worked out a good percentage of the time; you just kind of reach the right results for the wrong reasons” (p. 86). What is more, while public defenders are considered “inept” because they lose, the odd victory brings them little public credit. It is important to understand this because defenders are known to derive great personal satisfaction and important professional validation from their victories, however defined and however rare. Kunen (1983) reflects, for example, “I’m in it to win. It’s a matter of indifference to me whether my client is guilty or not” (p. 24). Wishman (1981) notes that “the sound of a jury saying ‘not guilty’ [is] thrilling” (p. 17) and “a victory could provide an exhilaration like no other” (p. 201). Smith (1993) asserts that “as far as I’m concerned there are no two more joyful words in the English language than the words, ‘not guilty’” (p. 52). It seems, in fact, that public defenders take pleasure in winning precisely because they win so infrequently; these atypical successes make them feel like legitimate, even proficient attorneys. As Babcock (1983-84) muses, “winning ah winning has great significance because the cards are stacked for the prosecutor” (p. 178), a view shared by a public defender interviewed by McIntyre (1987) who declares, “you

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feel great when you win. There is no feeling like it. And that wouldn’t feel as good if it weren’t so hard to win” (pp. 165-166) [Italics in original]. Yet at the same time, as McIntyre (1987) suggests, the “tremendous cross pressures” to which defenders are subjected taint their successes and render their accomplishments unappreciated: The public defender’s situation is complicated by the fact that its every legitimate victory potentially undermines the legitimacy of the rest of the system. If the public defender does win fairly, then it can only mean one of two things: (1) the defendant was actually innocent and ought not to have been arrested in the first place and prosecuted in the second or (2) the police and/or prosecutor failed to properly handle the case such that a conviction could be won. From the point of view of everyone, the startling conclusion must be that in a system where everyone is doing his or her job properly, the public defender does not win cases. (p. 72) [Italics in original] To the public mind, then, it is difficult to accept the idea that when factually guilty defendants are acquitted, it is through the superior abilities of attorneys branded with the “stigma of ineptitude” or viewed as “double agents.” In sum, public defenders are placed in a “no-win” situation: losses result from incompetence and corruption, while victories are generated not by talent or effort, but by outside forces so powerful as to overcome the defender’s incompetence and corruption. It would seem paradoxical, it is worth noting, that allegations of substandard representation exist side-by-side with the aversion expressed toward public defenders for their representation of guilty clients. After all, why would the same public that is discomfited by the defense of guilty clients be troubled by the poor quality of the defense provided? Perhaps the public is unable to reconcile such seemingly conflicting perceptions. These attitudes, moreover, may derive from different segments of the population. It may be, however, that these perceptions are more closely related than they seem at first glance. Public defenders might be degraded precisely because of who their clients are- the poor and the guilty; as McIntyre (1987) suggests, it may be that defenders “are contaminated by their clients, thought less of simply because they work with indigents” (p. 64), who are, after all, frequently guilty as charged. Indeed, this suggestion is reaffirmed by Rossett & Cressey (1976), who state: Public defenders are assigned to the losers in the systempersons charged with crime who are too poor to hire their own

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Public Defenders lawyer and who, by and large, are most severely punished. Perhaps this is why other courthouse workers as well as society tend to regard public defenders themselves as losers. (p. 118)

CONCLUSION Whatever the case may be, it seems reasonable to conclude that this apparent contradiction is a clear sign of the moral ambivalence that surrounds the work of indigent defense- in the minds of the public, and upon occasion, even in the minds of public defenders. It is as much for these reasons as it is to examine issues left unresolved by the existing research that a study asking public defenders why they do what they do would be a particularly useful contribution to the field. Before questions about what motivates public defenders can be addressed, however, a few words about methodology are in order.

_________________________ ENDNOTES 1 McIntyre (1987) notes that instead of a clear hierarchical office structure, the Cook County Public Defender is characterized more by its confusing “antistructure” (p. 131). 2 McIntyre (1987), however, reports something different. She states that the public defenders in Cook County end up liking their clients and regard them as “nice guys” (p. 168), a point echoed by indigent defenders who have themselves authored memoirs (Kunen, 1983, pp. 22, 181, 189; Wishman, 1981, pp. 90, 125). 3 Rule II, adds Dershowitz, is that “all criminal defense lawyers, prosecutors, and judges understand and believe Rule I.” 4 The shared norms and goals that characterize informal courtroom interaction are not, in an objective sense, necessarily improper. Rather such “organizational maintenance goals,” while “not illegitimate… have not yet been publicly legitimized” (Eisenstein & Jacob, 1991, p. 28). 5 Trials of clearly factually and legally guilty indigent defendants, though few in number as compared to plea agreements, are not unheard of. Defendants sometimes insist on taking their cases to trial because they are simply unreasonable or because they are so clearly guilty of a serious offense that even if a concession is proposed by the prosecution, it would still result in a period of incarceration so protracted that they reasonably conclude that they have nothing to lose: the risk of a marginally more severe sentence is offset by the chance, however remote, of a jury acquittal (Bellows, 1988; Mather, 1979; McIntyre, 1987).

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This perception seems shared in a general sense by both the practicing bar (Heinz & Laumann (1982|1994) report that criminal defense is ranked by the lawyers of the Chicago bar as only the 23rd most prestigious field of law out of 30 options) (p. 58), as well as politically charged critics who allege that poorly qualified defenders play an important role in the continuing oppression of society’s underclass (Barak, 1980; Kappeler, Blumberg, & Potter, 1996; Lynch & Groves, 1989; Quinney, 1970, 1979; Reiman, 1995). Indeed, “radical” and Marxist criminologists have made particularly harsh allegations about the inferior quality of indigent defense (and also about private lawyers who represent the poor), often linking such charges to their more broadly based political worldview. Richard Quinney (1970), for example, argues that indigent defenders are “the least competent lawyers” who provide legal counsel that “is generally of limited character” while private defense attorneys are poorly trained and have insecure practices; according to Quinney, “legal services are inadequate for the class which requires legal assistance the most” (p. 152).

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CHAPTER 4

A Qualitative, Semi-Structured Interview Study

Social research is often described as serving the following general purposes: exploration, description and explanation. Exploratory studies seek to delve into phenomena that are new or uncharted in order to “satisfy the researcher’s curiosity and desire for better understanding” (Babbie, 1998, p. 90). Descriptive research, naturally, seeks to describe; “to portray accurately,” that is, “the characteristics of a particular individual, group, organization, or institution” (Guy, Edgley, Arafat, & Allen, 1987, p. 102). Explanation involves predicting cause and effect relationships among variables; in a more fundamental sense, “a researcher has an explanatory purpose if he wants to know why” (Babbie, 1998, p. 92). The methodology of social research, moreover, has typically been portrayed as either qualitative or quantitative. As Kvale (1996) indicates, “quality refers to what kind, to the essential character of something. Quantity refers to how much, how large, the amount of something” (p. 67) [Italics in original]. Yet such appellations in reality refer to data collection and analysis, rather than the research process in its entirety. Even in quantitative studies, the tasks of developing concepts and hypotheses, as well as interpreting results is largely qualitative (Kvale, 1996, p. 69). The essential distinction has to do with whether the data will be collected, analyzed and presented in textual or numerical form (see generally Babbie, 1998, chapters 14-17). Whether a quantitative or qualitative approach will be used is a decision that will rest on several considerations, including the nature of the research question, the state of its theoretical development, and the interests and competence of the researcher. These are important issues, because they drive the selection and use of data collection techniques and modes of analysis. Explanatory research involves testing hypotheses that examine the extent to which numerical change in certain variables is associated with numerical change in others. Data for this sort of research may be obtained in a number of ways, most notably through the administration of survey questionnaires.

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When a more textured understanding of a subject is desired, however, a qualitative approach may be more appropriate. Babbie (1998), for example, notes that “many qualitative studies aim primarily at description” (p. 91). Similarly, Taylor & Bogdan (1998) assert that qualitative methodology “refers in the broadest sense to research that produces descriptive data.” These authors stress, moreover, that among the principal interests of qualitative researchers is describing and interpreting “the meanings people attach to their lives” (p. 7). Such statements, to be sure, are rather general. Nevertheless, they seem particularly attuned to the objective of this study: to understand the nature of public defender motivations. Qualitative research, however, is a diverse thing. Merely because it refrains from quantifying data does not mean that it lacks rigor or is in any way simplistic. Qualitative research is, moreover, characteristically an inductive exercise. Unlike explanatory research, which tests proposed theoretical linkages, qualitative approaches often begin without clear theoretical propositions; theory is instead derived in an ongoing and simultaneous process in which initial models or hypotheses may or may not be set forth, but in which theory is in any case developed, reformulated and refined during continued efforts at data collection and analysis. As Babbie (1998) puts it: [Qualitative research is] not just a data-collecting activity. Frequently, perhaps typically, it is a theory-generating activity as well. As a field researcher, you’ll seldom approach your task with precisely defined hypotheses to be tested. More typically, you’ll attempt to make sense out of an ongoing process that cannot be predicted in advance- making initial observations, developing tentative general conclusions that suggest particular types of further observations, making those observations and thereby revising your conclusions, and so forth. (p. 280) Perhaps the most prominent illustration of the inductive nature of qualitative research is “grounded theory,” an approach to data collection and analysis that many consider to be a research method in its own right. According to Strauss & Corbin (1990): A grounded theory is one that is inductively derived from the study of the phenomenon it represents. That is, it is discovered, developed, and provisionally verified through systematic data collection and analysis of data pertaining to that phenomenon. Therefore, data collection, analysis, and

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theory all stand in reciprocal relation with each other. One does not begin with a theory, then prove it. Rather, one begins with an area of study and what is relevant to that area is allowed to emerge. (p. 23) QUALITATIVE INTERVIEWS While this research has been influenced by grounded theory concerns, it did not adhere strictly to this sort of approach. Rather, qualitative interviews were the chief method by which data about public defender motivations were collected. As Taylor & Bogdan (1998) observe, “interviewing is well-suited for studies in which researchers have a relatively clear sense of their interests and the kinds of questions they wish to pursue” (p. 91). In this regard, well before any data was collected for this study, a comprehensive review of the literature was undertaken in order to focus attention on relevant issues and more narrowly define the research agenda. This literature review has been divided into two parts. The preceding chapters are an extended discussion of the general state of criminal courts research and the challenges that make public defense work difficult. They are intended to demonstrate why a study of public defender motivations would be a fruitful enterprise. The second part of the literature review identifies a range of defender motivations and describes their assorted permutations. Deciding how to organize the latter material proved difficult. Literature reviews are often presented in continuous form; such an approach represents in written fashion the chronological progression of a research project. A disadvantage, however, may be a loss of context, as the nexus between specific portions of the literature review and related research findings becomes attenuated. This study, therefore, uses the following approach: in addition to the background information provided without interruption in the preceding chapters, what the literature suggests about specific public defender motivations will be integrated together with my findings and presented throughout the remainder of this study. In actuality, this portion of the literature review had two functions. First, it compares what the pre-existing research reveals about defender motivations with what was discovered in this study. Consistent with the theory-generating purpose of qualitative methodology, moreover, it also guided the development of interview questions, set in motion plans for data analysis and in general functioned as a springboard from which descriptive research on defender motivations was undertaken. Taken together or considered separately, then, the literature review fulfills to a large degree the “thematizing” function that Kvale (1996) considers the

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first stage of any interview investigation: the process in which the researcher “formulate[s] the purpose of an investigation and describe[s] the topic to be investigated before the interviews start” (p. 88). According to Kvale (1996), moreover, the qualitative research interview “is an interpersonal situation, a conversation between two partners about a theme of mutual interest. It is a specific form of human interaction in which knowledge evolves through a dialogue” (p. 125). Throughout his book, in fact, Kvale often uses the term “inter view” as two separate words in order to refer to just such an “an inter-change of views” (p. 14). Though this conversation is “asymmetrical” (p. 126) in that it is defined and controlled by the interviewer, it is nevertheless quite unlike the process of administering to subjects a list of predetermined queries, and it makes it difficult to specify precisely the interview questions that ought to be asked. Some interviewers, in fact, prefer to proceed, especially at the start of the interview project, with only a rough sense of the questions that will be used; they “begin with the assumption that they do not know in advance what all the necessary questions are. [Rather, they] must develop, adapt, and generate questions and follow-up probes appropriate to the given situation and the central purpose of the investigation” (Berg, 2004, p. 80). This research, however, steered clear of this sort of free-flowing, “intensive” (Lofland & Lofland, 1995, p. 18), “unstandardized” (Berg, 2004, p. 80), “no-method” (Kvale, 1996, p. 13) strategy. Like many qualitative interview studies, the idea was to utilize a research approach that was simultaneously carefully planned and pragmatically adaptable: to conduct, in other words, “semi-standardized” (Berg, 2004, p. 80) or “semi-structured” (Kvale, 1996, p. 5) interviews which specified in advance “a sequence of themes to be covered as well as suggested questions,” yet tried to encourage an “openness to changes of sequence and forms of questions in order to follow up on the answers given and the stories told by the subjects” (Kvale, 1996, p. 124). It bears repeating, then, that the interview stage itself is an inextricable part of a research process: the knowledge produced during each individual interview leads to rethinking and revision; this means the continual restructuring of the interview investigation as ongoing analysis further refines and reformulates the themes and propositions of the study. With this in mind, in fact, Kvale (1996) suggests that researchers utilize not one, but two interview guides: “one with the project’s main thematic research questions, and the other with the questions to be posed during the interview, which takes both the thematic and the dynamic dimensions into account” (pp. 130-131). The idea behind the dual guide approach, as Kvale suggests, is that the

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substance and sequence of specific questions might be modified as an interview proceeds so as to better explore broader thematic issues. Following this advice, two guides were in fact used during each of the interviews conducted. The literature on defender motivations inspired the development of a conditional collection of broad “themes” each interview attempted to explore. In addition, I used a provisional list of open-ended questions designed to probe defender motivations without prejudicing their responses; a protocol containing the themes and specific questions most frequently posed can be found in Appendix One. This does not, of course, include specific probes and follow-up questions designed to further explore topics raised by individual interviewees in response to prior inquiries. Just as the methodologists predicted, although the focus of this study was clear, the interview sessions varied from subject to subject. Questions were not necessarily asked to each subject in exactly the same form or sequence; sometimes a particular response naturally segued into a topic about which a later question was scheduled. Other times, respondents offered detailed, unique or unexpected observations. On several occasions, in fact, interviewees were so thoughtful and provided so much that was important and interesting on what was addressed that inevitably, time constraints prevented a full treatment of other topics; in this regard, what was and what was not discussed varied from subject to subject. A few of the original questions, moreover, proved superfluous and were not asked of future subjects as data collection went on. Additional questions were designed after new themes emerged. On three occasions, something unexpectedly important came up and subjects were compelled to cut short the interview when another 20 minutes or so would have been needed; for two of these defenders, additional time could not be scheduled. As expected, then, although themes under investigation were set forth in advance, the nature of semi-structured qualitative interview research made certain that no two interviews were exactly alike. SAMPLE SIZE An issue interviewers commonly wrestle with involves the number of subjects needed for an appropriate sample of informants. The answer to this question, however, seems less than clear. As Kvale (1996) remarks, “To the common question, ‘How many interview subjects do I need?’ the answer is simply, ‘Interview as many subjects as necessary to find out what you need to know’”(p. 101). Expert opinion, however, seems to caution against the use of an exceptionally large number of informants; what is emphasized, instead, is narrative depth. Noting the advantages of case studies, for example, Taylor & Bogdan (1998) write

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that “in qualitative research, an ‘N of 1’ can be just as illuminating as a large sample (and very often more so)” (p. 91). Without going quite that far, Kvale (1996) also urges fewer rather than more subjects: this “makes it possible to investigate in detail the relationship between the individual and the situation.” Qualitative studies with large samples, Kvale continues, seem “a defensive overreaction, some qualitative studies operate on a quantitative presupposition- the more interviews, the more scientific” (p. 103). While methodologists have been reluctant to specify what an appropriate number of subjects might be, previous interview studies of the criminal courts are of some value. Yet even here, the answer is by no means certain. Researchers have utilized sample sizes ranging from as many as 71 (Heumann, 1978) to as few as 15 (Emmelman, 1996, 1997) subjects. If there is a general trend, it is worth noting that three classic courts studies contained in-depth interviews of 20 (McIntyre, 1987), 30 (Carter, 1974), and 35 (Levin, 1977) core informants respectively. A useful way to think about sample size, finally, deliberately refrains from identifying in advance a requisite number of subjects. The French sociologist Daniel Bertaux (1981) argues that there comes a point during an interview study when investigators cease learning new and interesting things about their subjects and the social processes they are examining; informant responses typically repeat much of what has already been discovered. It is at such a point that a researcher will know that the sample is sufficiently large. As Bertaux has written with regard to one of his own research projects, when his interviews reached this stage, “there was no point in going any further. We knew already what we wanted to know” (p. 31). He refers to this, in fact, as “a process of saturation of knowledge” [Italics in original] and explains how this notion of saturation can produce a representative sample at the “level of socio-structural relations”: This process confers to the idea of “representativity” a completely different meaning. In short, we may say that our sample is representative, not at the morphological level (at the level of superficial description), but at the sociological level, at the level of sociostructural relations (rapports sociaux). These two levels should not be confused. If, for instance, one wants to know how a given population is going to vote in the next election, the first level is the right one. But if one wants to understand how the practice of voting and choosing for whom to vote takes shape, then it is the second level which is relevant. (pp. 37-38)

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As a practical matter, moreover, it not always possible for a researcher to predict what the exact size of an interview sample will be; access to a hoped-for site might be denied, potential subjects might not wish to cooperate, and a saturation point might be reached. Nevertheless, as the data collection stage began, my hope was to interview somewhere in the neighborhood of 40 subjects. The final tally was 48. SETTING, SAMPLING, ACCESS AND INTERVIEWS While many previous courts-related interview studies have focused on one setting (Carter, 1974; Emmelman, 1996, 1997; McIntyre, 1987; Platt & Pollack, 1974), others have utilized two (Levin, 1977), three (Heumann, 1978; Ulmer, 1997) and even as many as nine (Eisenstein, Flemming, & Nardulli, 1988; Flemming 1986) different research sites. Even before any interviews were undertaken, three defender-service agencies in different locations in the same state were selected1 in order to reach an appropriate number of potential respondents, better ensure the generalizability of common findings, and stimulate some thoughts about how motivation might vary on individual, organizational and community dimensions. Restricting the scope of this project to different offices from the same state also served to keep the requirements of the penal code constant. The chart below summarizes some of the more important characteristics of the locations selected: Research Setting Characteristics Site Population Urban/Rural

Non-White Population

Indigent Defense

“Small Town” Small One small city surrounded by small towns and rural areas Moderate in city; Small in surrounding areas Part-time staff; Practice in both city courts and surrounding areas

“Mid City” Moderate One mid-sized city surrounded by small towns and rural areas Large in city; Small in surrounding areas Full-time staff; Practice in both city courts and surrounding areas

“Big City” Large One city; Entirely urban Large

Full-time staff

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In order to obtain access to these offices, I first wrote letters on university letterhead to the attorney in charge, and promised a follow up call soon thereafter. During the ensuing telephone conversation, I explained who I was, described what my proposed study was about, informed them of what participation in the project would require, assured them that neither the identity of the office nor those of individual participants would be revealed, and answered their questions. Once I was granted permission to interview members of their staff, I wrote an almost identical letter to the defenders selected to participate; they too were promised a follow up phone call during which I would personally request an interview and address any of their questions or concerns. I contacted each attorney on my own despite the willingness of those in charge to let the office know that I would be coming. In this way, I hoped to make sure that the decision to participate was free of any pressure from above. That a number of those contacted chose not to take part suggests that, in fact, no such coercion occurred. In two of the three offices, the staff size was such that in the unlikely event a 100% response rate was achieved, it would not have been unmanageable to interview each defender on staff; every attorney at these locations was contacted and no sampling strategies were needed to ensure a random sample. Other courts researchers have taken such an approach: Levin (1977) interviewed 30 of 33 incumbent judges in two sites, while Carter (1974) interviewed 30 of 35 prosecutors in one location. In fact, McIntyre’s (1987) interviews of only 20 active Cook County public defenders were not even the result of any carefully formulated sampling strategy. Rather, her subjects were chosen “to help ensure that my sample included lawyers with opinions that represented the major points of view that exist in the office” (p. 7). And again, although some of the attorneys I contacted chose not to take part, because each defender was given the same opportunity to participate, these samples should pose few methodological concerns. As such, I wrote to every defender at these two offices and called them personally a few days thereafter. At one office, 17 of the criminal attorneys were interviewed- approximately two-thirds of the defenders on staff. Two told me during follow-up phone conversations that they preferred not to take part and two others initially agreed to participate and then found themselves preoccupied by more pressing matters. I left three voice mails with each of the remaining defenders over the next few weeks; their reluctance to take part was made clear when they did not return my calls. In the second location, eight of the criminal defense attorneys agreed to participate- a response rate of just over two-thirds. At this office, one attorney declined participation over the telephone;

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another agreed to an interview, but when I myself had to unexpectedly cancel, it was not possible to reschedule. Here too, the other attorneys did not call me back after I left three voice mails with them. Because the third office was too large to interview every criminal defender, I selected at random half the staff to contact. I wrote the name of each attorney on a slip of paper, placed them in a hat and pulled them out one by one, until each defender in the office was numbered from first to last; I then arranged interviews with enough attorneys to comprise an adequate sample. In total, I interviewed just under half of the criminal attorneys on staff, and just under 70% of those contacted. Of the defenders contacted who did not take part in this study, one called to decline participation after receiving my letter, three agreed to cooperate but interviews could not be scheduled because of work obligations and vacation plans, and the remainder indicated their preference by disregarding three voice mails. When it became clear that an attorney was not going to cooperate, I simply moved down the list to the next name. In all, there were 48 interviews, including sessions with the two of the three chief defenders and five others with supervisory responsibility; these interviews yielded important insights into the organizational culture of these offices and provided perspectives from particularly experienced defenders. Interviews were conducted in the summer of 2001 in places defenders felt most comfortable. More often than not, it was in their private offices or some other office location such as the library or a conference room. Other sessions occurred in a coffee shop, a restaurant, a courtroom, and even one defender’s home. One interview with a parttime defender in the “Small Town” site occurred at the official Office of the Public Defender while the others occurred at their private practices; another began at a private office, was temporarily suspended and then picked up later in the day at the public defender’s office. Interviews generally lasted about an hour; the shortest interview was 35 minutes, the longest approximately two hours. Prior to our session each respondent was asked to read and sign a consent form that once again described the purpose of the study, explained the procedures to be used and alternative options, made clear its ethical implications and assured the confidentiality of their responses. I should also acknowledge that the public defenders who took part in this study were both gracious and forthcoming. They were under no obligation to take part in this research, yet they chose to do so. They gave to this project time they might have spent at work or leisure. And although there were times when I felt a subject was less than completely honest, guarded or uncomfortable, my sense was that they were largely accommodating and sincere; indeed, it seemed to me that many of the defenders I

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interviewed welcomed an opportunity to tell their stories and make their impressions known to interested outsiders. DATA ANALYSIS: RECORDING, TRANSCRIBING, AND CODING It has been suggested that the presence of an electronic recording device serves to disrupt the free exchange of dialogue and thereby make the interview conversation artificial; according to this argument, informants are likely to be less forthcoming and less candid. Some modern-day interviewers, in fact, have recorded informant responses by taking handwritten notes only (e.g., Jacobs, 1999; Lombardo, 1989). Nevertheless, a more accurate and detailed interview is possible when it is recorded on tape. Not only will every response be preserved notwithstanding inevitable interviewer errors in hearing and memory, but in addition, “the interviewer can… concentrate on the topic, and the dynamics of the interview. The words and their tone, pauses and the like, are recorded in a permanent form that can be returned to again and again for relistening” (Kvale, 1996, p. 160). On this issue, each defender was given a choice: 40 agreed to be tape-recorded and eight preferred not to be. For the interviews that were not taped, I attempted to write down responses precisely as they were stated. Unavoidably, of course, things were missed; human conversation naturally proceeds at a pace too rapid for an amateur to record its entirety word-for-word. Still, when these defenders said things that were particularly significant or interesting, I made certain to get as much as possible down in the exact form in which their comments were voiced; I am confident that I was largely successful in this endeavor. Sometimes, in fact, I was forced to ask the subject to wait for a moment as I wrote. Indeed, it is for this reason- and also because I looked less at the defender than I did at my writing pad- that I wonder if tape-recorded interviews are not in fact more like a natural conversation than those that do not use the device. Even during the tape recorded interviews, however, short notations were made to provide perspective with regard to the physical manifestations of the interview, including the nature of the interview setting, as well as the informants’ facial expressions and bodily movements. As one might expect, however, I encountered some recording problems along the way. One tape-recorded interview was completely unintelligible and thus unusable. Parts of three other tape-recorded interviews presented problems and required repeated and extended listening. Tape-recorded interviews are transformed into data when they are transcribed into written form. This procedure, however, indelibly alters

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their character. As Kvale (1996) notes, transcripts are in some sense “artificial constructs”: The interview is an evolving conversation between two people. The transcriptions are frozen in time and abstracted form their base in social interaction. The lived face-to-face conversation becomes fixed into transcripts. A transcript is a transgression, a transformation of one narrative mode- oral discourse- into another narrative mode- written discourse. To transcribe means to transform, to change from one form to another. (p. 166) [Italics in original] Still, transcribed conversations are the touchstone of any interview study. But what and how much need to be transcribed are additional methodological questions for which there are few easy answers. While conversational or narrative analysis often involves the word-for-word transcription of an entire interview, Lofland & Lofland (1995) note that this is not typical of most interview studies: It is generally not necessary for you to transcribe every word, exclamation, or pause in an interview. Indeed, there may be entire answers or descriptions given by the interviewee that you will feel need only be summarized or recorded as having occurred. You do not necessarily need a verbatim transcription of everything the interviewee said, as the written record will indicate where to look for it on the tape. If you later want to have a verbatim version of a particular part of the interview, you can easily locate it and transcribe it. (p. 88) [Italics in original] I had initially thought I would follow Lofland & Lofland’s (1995) recommendations about what is to be included in the “written record” of an interview: this includes “verbatim transcriptions” of relevant and important interactions and responses, “summaries and notes” of more general information, field notes of “relevant extra-interview encounters,” pertinent methodological information, and “tentative pieces of analysis” occurring to the interviewer as the write-up proceeds (p. 88). However, inasmuch as transcription is merely one part of a larger methodological process in which themes and patterns may gradually be recognized in subjects’ responses, I began to feel that it would be premature to make judgments about what was relevant until after the interviews were transcribed; I feared that I might mistakenly presume some things unimportant when it would later turn out that they

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were, and thus vital discoveries would be missed. As such, except for unintelligible passages as well as the few times defenders veered way off course and commented on things that were plainly not germane to the focus of this research or the criminal courts in general, everything was transcribed for each of the interviews. The next stage of a qualitative interview study involves what Kvale (1996) refers to as “meaning categorization” and entails the development of “codes” (p. 196). Lofland & Lofland (1995) describe codes as “labels that classify items of information as pertinent to a topic, question, answer, or whatever” (p. 186). The idea, they maintain, is “to group the flow of raw reality into packages of items that are related to one another” (p. 187). As Berg (2004) describes it, “you simply seek naturally occurring classes of things, persons, and events, and important characteristics of these items. In other words, you look for similarities and dissimilarities- patterns- in the data. But you must look for these patterns systematically!” (p. 115). Although the purpose may be, as Berg suggests, “simple,” systematic coding is a particularly challenging process; whether and to the extent a researcher proceeds manually or uses computerized aids, moreover, the objective remains the same. Berg (2004), for example, describes a “systematic indexing process” as one that begins when “researchers set up several sheets of paper with major topics listed separately. Below these topics are usually listed several other subtopics or themes” (p. 115). These “index sheets” are then filled in with excerpts from interview transcripts that reflect in some manner the theme in question; the informant and the page number are typically identified for reference. Though a description of manual coding, the approach discussed here was easily generalized to the use of word processing programs for data storage and analysis. I coded each interview transcript on Microsoft Word by using the highlight function to color excerpts according to the themes I identified in the literature and new themes that emerged as I conducted interviews and read through the transcripts. Once the color-coding was complete, I used the cut-and-paste option to extract the highlighted excerpts and place them into newly created documents, each representing a particular theme; these documents were further divided into categories representing identifiable sub-themes. It was in this way that the data collected for this research was analyzed and interpreted. Throughout much of this study, interview excerpts will be presented to illustrate key research findings and justify data analysis. Following each, a bracketed identification number will denote the speaker. These excerpts are verbatim quotes from participating public defenders, with a few small caveats: I altered words or expressions

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when defenders used either formal terminology or informal lingo that might provide clues about the identity of the research sites; examples would be the names of notable people and places, offense designations or job titles. I also decided not to include comprehensive information about actual cases, although there appear a few examples with common fact patterns shorn of more specific details. While this material was often illuminating, I want to avoid any risk that the speaker will be recognizable to others. In addition, I thought long and hard about whether to present full demographic data about the public defenders interviewed for this study and the offices from which they came. On the one hand, such information often promotes a more thorough interpretation of research findings. However, I also felt that my respondents’ identities deserved protection not only from conventional readers, but also from colleagues or supervisors who knew which defenders were taking part in this project. In view of some of the controversial things that were said, it is not inconceivable that if a respondent were identified, he or she might suffer professional harm. As such, I worried that providing the gender, race, age, tenure or office affiliation of a particular public defender might give away too much about his or her identity. For example, in one of the offices, only one woman was interviewed. In total, I interviewed one defender of Asian ancestry, four Latino defenders (two in one office, two in another), and five African-American defenders (one in one office, one in another, and three in a third). Revealing these sorts of things would either have automatically identified the speaker to a co-worker or allowed for a pretty good guess. In sum, I decided to obfuscate demographic information so as to abide by the ethical requirement to avoid the possibility of harm to my subjects. I certainly owe them that much. As compared with quantitative methodologies, moreover, qualitative interview research necessarily utilizes comparatively small samples. I am not sure how useful it would be to compare responses of, say, public defenders of different races or ethnicities when among my interviewees, only one defender was Asian, four Latino, five African-American, and 39 white. Future research may build upon this study and be specially designed to answer this question. It is worth noting, in addition, that although I interviewed 21 women, 27 respondents were men. I have labored throughout this study to avoid the use of pronouns that would reveal a respondent’s gender, but when that proved impossible, I have followed McIntyre’s (1987) policy of only using the masculine form (p. 8). I hope that this does not insult the many insightful female defenders who were kind enough to take part in this study; it is merely an attempt to provide an additional layer of confidentiality.

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PRE-INTERVIEW PREPARATION The key to successful interviewing, of course, is the skill of the interviewer (Kvale, 1996, p. 13). Yet as Kvale makes clear, an interviewer acquires skill through practice; one learns to become an interviewer by interviewing. As such, he recommends that prospective researchers conduct pilot interviews before the actual project commences. Pilot interviews, moreover, allow the researchers to pretest the interview guide “to assess how effectively the interview will work and whether the type of information being sought will actually be obtained” (Berg 2004, pp. 90-91). In other words, pilot interviews can go far toward ensuring that the specific questions to be asked are dependable enough to address the central concerns of the study. Three pilot interviews were conducted in preparation for this study: one with a lawyer who was not, however, a public defender and two with other non-lawyer professionals who pretended to be public defenders. In addition, an interviewer must be familiar with the themes and issues embedded in the research project, and while a grasp of the previous literature is essential, it is by no means sufficient. Researchers must also understand the formal and informal practices that characterize the settings in which the interviews are to be conducted and the topics to which the interviews are to refer; this is why most interview studies include an observational component. Lofland & Lofland (1995), in fact, go so far as to say that while one approach or the other may receive greater emphasis as research is planned and carried out, interviews and observation are in actuality indelible and inseparable parts of qualitative study: Classic participant observation, then, always involves the interweaving of looking and listening, of watching and asking, and some of that listening and asking may approach or be identical to intensive interviewing. Conversely, intensive interview studies may involve repeated and prolonged contact between researchers and informants, sometimes extending over a period of years, with considerable mutual involvement in personal lives- a characteristic often considered a hallmark of participant observation. (p. 19) Kvale (1996) suggests that the observational aspect of interview studies need not be formally designed and may serve its purpose in a more causal manner: “just hanging out in the environment where the interviews are to be conducted will give an in introduction to the local language, the daily routines, and the power structures, and so provide a sense of what the interviewees will be talking about” (p. 96). Before

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approaching potential subjects or conducting any formal interviews, then, some time must be spent observing. As such, in two of the three locations, two separate sessions of at least three days apiece were spent “just hanging out” in courtrooms and courthouses in order to obtain exposure to local jargon, institutional policies, and both formal and informal behavior. As a consequence of conducting so many interviews, of course, I also spent a good deal of time in each Public Defender’s Office as well as the private offices of all but one of the part-time defenders. Here too, it was possible to get some sense of what day-to-day life was like for public defenders even when they were not in court. CONCLUSION Malcolm Feeley (1979|1992) has argued that quantitative explanations of criminal court processes are beset by certain limitations (pp. 146153). They tend, for example, to encourage a reliance on court records that impedes the recognition and evaluation of factors that are not readily identifiable in official data. And whereas qualitative efforts promote an interactive approach to data collection and analysis that permits the refinement of key theoretical formulations throughout the research process, Feeley argues that the large sample sizes that typify quantitative research necessitates the development and maintenance of such constructs before data analysis begins. Quantitative approaches, finally, are apt to neglect examining “the attitudes of major participants” (p. 152) and are insufficiently attentive to “the peculiarities of particular personalities” (p. 147). To be sure, Feeley urges an approach that emphasizes participant observation. Yet, as Lofland & Lofland (1995) have argued, the distinction between fieldwork and interviews may be overstated; rather, these authors “emphasize the mutuality” of such approaches “as the central techniques of naturalistic investigation” (p. 19). In addition, while Feeley’s misgivings more precisely refer to what he perceives to be deficient in large-scale evaluations of criminal court processes, this research has a more modest objective: to examine public defender motivations. Finally, it must be mentioned that many influential quantitative studies have had a tremendous impact on the development of criminal courts research. Feeley’s comments, nevertheless, are instructive. The qualitative research interview, Kvale (1996) maintains, is a “construction site of knowledge”: If you want to know how people understand their world and their life, why not talk with them? In an interview conversation, the researcher listens to what people themselves

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Public Defenders tell about their lived world, hears them express their views and opinions in their own words, learns about their views on their work situation and family life, their dreams and hopes. The qualitative research interview attempts to understand the world from their subjects’ points of view, to unfold the meaning of people’s experiences, to uncover their lived world prior to scientific explanations. (pp. 1-2)

Carter (1974), Heumann (1978) and McIntyre (1987) have each conducted revealing courts-related interview studies; they have certainly paved the way in this regard. My aim is to follow their lead in the hope that something worthwhile may yet be added.

_________________________ ENDNOTES 1 It should be emphasized that selecting an appropriate research site is not a simple matter. As Taylor & Bogdan (1998) write, “the ideal research setting is one in which the observer obtains easy access, establishes immediate rapport with informants, and gathers data directly related to the research interests. Such settings seldom exist” (p. 27). Obtaining access, moreover, is a particularly critical point in the course of a project; it is at this juncture that a wellarticulated idea crystallizes into actual research. Indeed, Lofland & Lofland (1995) refer to “getting in” as “the first truly social moment of naturalistic investigation” [Italics in original]. Yet this barrier is often difficult to traverse; “it is,” in other words, “one thing to decide for yourself about interest, appropriateness, accessibility and ethics; it is quite another to get all the interested parties to go along with your plan” (p. 31). To be sure, this is a much more complex problem for the ethnographer contemplating the functional practicability and ethical dilemmas of covert research. An interview study like this must deal with such issues directly; one cannot, after all, interview an informant without access or permission. In any event, it is necessary to allow a certain amount of flexibility when planning to enter particular research settings; they might well change as a study progresses. As it happened, administrators in each of the three offices I selected granted entrée and most staff attorneys were similarly amenable.

CHAPTER 5

Pragmatic Motivations

PUBLIC DEFENDER MOTIVATIONS IN GENERAL: PRAGMATIC AND POLITICAL MOTIVATIONS Familiar visions of crusading heroes defending not only the rights of their clients, but the whole American system of criminal adjudication have been assailed by a more jaded picture of the public defender’s work. Yet this study finds that although defenders must confront a variety of institutional challenges that make their work difficult, there are incentives that serve to surmount these obstacles and explain their commitment to their work. Evidence suggests that lawyers choose to be public defenders for a variety of specific reasons. These can be broadly described as falling within one of two categories: “pragmatic motivations” and “political motivations.” Political motivations reflect an ideological outlook distinctive to public defenders; they involve opinions about how the world works and how the world ought to work that defenders are not all that likely to share with prosecutors- notwithstanding the common educational and socialization experiences derived from the legal training all attorneys must undergo. Three general varieties of political motivations have been identified- legal, altruistic and critical- and these will be described in detail in Chapters Six through Eleven. Pragmatic motivations, however, are inward looking. They provide something important for public defenders instead of making a statement about the world around them. They are inherently apolitical and involve the occupational attractions of work in the courts; with some exceptions, moreover, the sorts of pragmatic motivations that drive public defenders are not likely to be all that different from those that drive prosecutors, and several, in fact, have been discussed by those who have chronicled the latter’s attitudes and behavior patterns (Baker, 1999; Carter, 1974; Fishman, 1979; Heilbroner, 1990; Heumann, 1978; Rossett & Cressey, 1976; Vachss, 1993). This chapter will begin the process of presenting research findings by relating in detail the public defender’s pragmatic motivations.

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INTRODUCTION TO PRAGMATIC MOTIVATIONS Attorneys do public defense work for a number of pragmatic reasons. Much of it has to do with a love for the competitive, intellectual, creative and dramatic aspects of litigation. Also significant is the particular appeal of criminal practice, professional autonomy, the companionship of likeminded colleagues, and the lifestyle opportunities for government attorneys. Because nothing about this seems distinctive to criminal defense, it is likely that pragmatic motivations are part of what drives both public defenders and prosecutors. Yet while this may in a broad sense be true, many of the lawyers interviewed for this study maintain that some of the pragmatic attractions of criminal practice in fact provide stronger motivation for public defenders than they would for prosecutors. TRIAL WORK “One of the major attractions of public defense work,” McIntyre (1987) reports, “is that it provides an almost unparalleled opportunity for courtroom experience” (p. 83). In fact, 19 of the 20 actual defenders and 72% of the 60 former defenders she interviewed “said they joined the office because they believed it to be a good place to gain experience and to practice law as a trial attorney” (p. 86). Similarly, Eisenstein & Jacob (1977|1991) note that new Chicago defenders “resembled public defenders everywhere;” they came to the job because, among other things, they were “looking for trial experience” (p. 118). It is not merely that defenders consider trial experience professionally useful, however. And it is not as if the bulk of an indigent defender’s work involves trials; it is well established that it does not. Trial work, rather, is central to the defender’s selfidentification. This is one explanation for why new attorneys are attracted to indigent defense and why more experienced defenders remain with the job despite their knowledge that trials are rare. As McIntyre (1987) notes, “public defenders first and last define themselves as trial lawyers… performance at trial is much more crucial to the attributions they make about themselves and each other than one could ever guess given the relative frequency of these performances” (p. 110). There is evidence, after all, to bear this out. Kunen’s (1983) satisfaction after completing his first trial- notwithstanding the conviction handed down from the bench- is readily apparent: “I felt like a real lawyer,” he declares contentedly, “I had had a trial” (p. 96). Heumann (1978) also suggests that when new defenders anticipate that their job will offer opportunities for trial work, it is based largely on their understanding that this is the touchstone of legal practice; asked

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“Did you expect to find more trials?” when beginning work as a defender, one of Heumann’s more experienced interviewees revealingly responds, “Yes. I expected to practice law here” (p. 50). As in the literature, many of the attorneys interviewed for this study declared that the opportunity for litigation is a large part of the reason they do public defense work: I love doing trial work. That’s my major concern. [30] Litigation is very interesting to me. I knew I wanted to be in a courtroom. [9] I came [to this office] because I wanted trial experience. [8] I felt that [in my past job], what I liked doing most- doing litigation- those skills were rusting away because I wasn’t getting a chance to use them and I wanted to get back to doing true litigation- doing jury trials, that sort of thing. [40] I wanted to be a trial attorney and [in my past job], I was doing [other] work and I wasn’t getting any of that. [14] I [am] attracted to a job as a public defender because I know I’m going to get a lot of trial work. [47] Some defenders even recounted that trial work has been something of a long-term ambition for them. One, for example, recalls that “trial work was something I always wanted to do from the time of my graduation.” [30] A different lawyer remembers being hooked after observing a trial for the first time during a law school internship: I loved the cross-examination. I thought the lawyer I saw was very good. He just impressed me. And I fell in love with cross-examination. He won, and I thought, “That sounds like fun!” [27] Other attorneys maintain that their aspiration to do trial work was the reason they went to law school in the first place: I made a decision to go to law school and in the back of my mind was the idea that I was going to be a litigator and a criminal attorney of sorts. [44]

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Public Defenders PD: For me, my desire to be an attorney was based on my desire to do litigation. For the longest time, I thought that was all attorneys did. I didn’t know that they drafted wills and did real estate closings and stuff like that. I thought that what lawyers did was like what you see on TV. So my focus was always on becoming that type of lawyer… MW: So, it wasn’t like a moment of epiphany: “This is the job for me?” PD: No. It was almost a given my entire life. Ever since I was a little kid, I wanted to be a lawyer, and I wanted to be that kind of lawyer. And it was just a matter of finding which areas would allow me to do that. So, the desire was ultimately to be standing in front of a jury arguing some very important issue to them. [10]

As clear as it is that many public defenders value the opportunity for litigation, the question that must be asked is: Why? What is there about trial work that is so appealing for public defenders, so much so that it overcomes the powerful obstacles indigent defense work involves? Intellectual Challenge For a number of attorneys, trial work is attractive because it poses an intellectual challenge. During the trial, for example, attorneys must conduct direct and cross-examinations, present opening and closing arguments, and do all of this in a manner carefully designed to impress the factfinder. Doing all this requires ingenuity, legal sophistication, and superior cognitive abilities. The adroit litigator, in other words, epitomizes legal proficiency. Indeed, many of the lawyers interviewed for this study find “the challenging aspect of just using your brain constantly” [2] to ensure an effective performance at trial to be among the most rewarding features of their work. Some frame the discussion in terms of the defender’s partisan role in a courtroom competition. In an interesting analogy, the defender that follows compares litigation to the science of boxing and refers to trial lawyers as “pugilist[s] with words”: PD: The only thing that keeps you here is that you like doing it. Once you get into that, that’s in your blood. It’s like a high. It’s like, pugilists fight[ing]... It’s like fighting without gloves. Without gloves, with the mind. It’s like a mind game, right? MW: It’s the intellectual challenge? PD: Exactly. It’s like a boxing match with our thoughts. And when I win, it’s all the more beautiful. But just being in it gets

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you going. Anyone who’s ever been in a good fight knows that. You know, just the fact that you were in it, exchanging something. I don’t mean getting pounced on. [Laughs] You’re exchanging. A boxing match, not a slugfest. Two fighters thinking, moving. [33] The intellectual and competitive qualities of trial work are also embodied in a spontaneity that often necessitates quick thinking and improvisation; a number of defenders find “thinking on your feet” an especially enlivening aspect of the litigation experience. One, for example, says of indigent defense that “it’s challenging. You learn to think on your feet so quickly with this job.” [23] Another similarly maintains that “I like being quick on my feet and I like having a snappy comeback for anything that goes on in court.” [18] The first of the two defenders that follow is a former trial attorney now working in appeals who argues that cross-examination at trial entails a dexterity analogous to that required by oral arguments before judges: There used to be a high that I got when I cross-examined witnesses… And I thought that I was decent at that. It’s a similar type of experience you’d get when you’re arguing in court and the court is asking you questions and you’re fielding a question and you’re thinking of the next question they’re going to ask and how to lead into the next part of your argument without any break in your discussion. And you’re thinking about what the judges are going to ask you and you make sure you’re responding in a way that’s favorable to your cause. So I get the same sort of enjoyment that I did when I cross-examined witnesses. [16] Criminal law happens very quickly, contrary to what my clients might think. It happens quickly. Everything is moving fast. It’s mostly a game played on your feet, as opposed to a game played on paper. I don’t respond to wanting to do things on paper. But I’m at least lucky enough that I’m quick enough on my feet, that I can play the game on my feet. And I like that. [40] In addition to spur-of-the-moment repartee, defenders enjoy “persuading and fashioning arguments that are persuasive.” [16] They value, in other words, the creativity their work requires: the opportunity to construct and present clever arguments. This is what Wishman

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(1981) means when he discusses “the pleasure of good craftsmanship” (p. 233) and it demands more than just legal skill; when you are a public defender, as the first of the attorneys that follow says, “you’re not only in law, but you’re in the advertising business”: At some point in college, I had thoughts of going into market research and advertising… Nothing ever came of it, but I think I realized long after that that what I was really interested in was advertising and what I was interested in in advertising was psychological manipulation. I think the idea of manipulating people’s minds really interested me at the time, and… that’s what I do now. It’s really what I do now. … What we’re trying to do on trial is to manipulate the minds of the jury to find somebody not guilty and the law doesn’t always have that much to do with it…. [28] There are two ways you can look at [an] “intellectual” [challenge]. One is when you’re dealing with legal issues and legal concepts. I don’t know that there’s a whole lot of that. Sometimes, this work can be very rote, except for the trials. But the intellectual challenge for me is in the molding of the defense from the facts that I have and being able to explain it to people and persuade people that this is what happened and this is what is right and this is what they should do. That’s what I find to be the intellectual challenge. Obviously we have legal issues at trials and hearings and there’s some research to be done, but a well-constructed argument is a good intellectual challenge and is very satisfying. Mostly, we deal with people- it’s the ability to persuade, the ability to move people to your point of view. [36] Being able to examine people, cross-examine them, putting evidence forward and trying to get 12 people to agree with you, to look at evidence your way. That’s fun. Trying to convince people to buy your story. [8] MW: Why did you want to get involved in trial work? PD: I like to lecture. I like to talk… So that idea of the challenge of being up in front of people and talking to them about something and trying to convince them about my point of view and having to use my brain that way was really exciting.

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MW: A lot of it is intellectual? PD: Yeah. [10] The intellectual challenge of litigation, however, involves more than just the trial itself; research, forethought, and vigorous preparation are also fundamental aspects of good craftsmanship. In fact, the prominence given to such tasks may be shaped by the expectations defenders bring to the job from their legal education. Heumann (1978), for instance, suggests that many new criminal attorneys expect to have a “romance with each case”: They assumed that most cases would be treated with great care, would be thoroughly researched, and would be given lengthy and detailed consideration. In law school, they had been trained to dissect appellate cases; their briefs on legal cases were finely honed pieces undertaken only after extensive research and deliberation. (p. 49) There are public defenders, then, who come to their work in order to experience in a professional context the intellectual challenge that was the hallmark of their legal education. Although many lawyers and law students are decidedly ambivalent about law school, some are enthralled by the cerebral qualities of legal inquiry: the extrapolation of legal principles from complex fact patterns, the propositions derived from comparing and contrasting, analogizing and distinguishing these principles as they apply to subtly altered factual scenarios. This is the sort of analytical process by which law students learn “to think like lawyers” (Turow 1977, p. 72). While it is a profound disappointment to many criminal attorneys that their heavy caseloads inhibit such a careful engagement with each and every one of their cases, there can be something of a “romance” when a case goes to trial. Investigations are conducted, legal issues are researched, legal theories are posited and strategies debated, pre-trial motions are filed and argued, supporting briefs are written, witness testimony is planned, and opening and closing arguments are prepared. There are defenders, in other words, who are invigorated by the intellectual challenges posed by a litigation process composed of the trial itself as well as its foundation work, something that even includes weighing the advantages of whether to go to trial in the first place: PD: I’m the one who has to raise legal issues, and figure out what defense we’re going to use and things like that. Or

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Public Defenders whether we’re going to take a plea, and what would be a good disposition based on their criminal record or lack of one. How it’s going to affect their job. How it’s going to affect their immigration status. Things like that. MW: So, is that sort of an analytical challenge, almost? PD: Yes. It has some challenging elements, yeah. To me, it’s like playing chess. I like that, the analytical side of it. Issue spotting. Figuring out what’s good, what’s going to work, what isn’t going to work. [23] PD: When you go to trial, you get a package of paperwork. You look at discrepancies in what the police say. Possible weaknesses. In what the same witness reports [at different times]. You suggest that these things don’t jibe. There’s always going to be problems in the paperwork. Discrepancies. Minutes from prior proceedings. Discrepancies in testimony. You suggest that the person is not telling the truth deliberately or by mistake. Case law is involved- if a person is arrested and they didn’t read him Miranda warnings. MW: So, you are saying that it’s the intellectual work, the analytical work that keeps you going…? PD: Yes. Exactly. [26]

The appellate lawyer from above finds criminal appeals stimulating in much the same way: I love the legal issues. When I sit down and I focus on a brief, I love fashioning arguments for my clients. And finding a case that will support my argument. I mean, I could sit in front of the computer! I just love putting a good work product up there, arguing before the court. I represent clients who’ve done really horrible things and I get a real kick out of that! And I rarely win… But even knowing that the chances of winning are so slim, I get a real joy out of putting together a really good work product, writing a great brief and arguinglike if this guy spends $100,000 on an attorney- I get a real joy out of doing a similarly good job. I love that. I’ve provided for this guy that quality of representation. [16] Frustrated Actors Litigation is also exciting for many defenders because trials are akin to a sporting event or a show in which they put on a performance for an audience. Rossett & Cressey (1976), for example, describe “the

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dramatic presentation of evidence and arguments to trial juries” as “a young lawyer’s goal” (p. 121). Wishman (1981), in addition, provides an especially insightful discussion of this aspect of the trial experience: The fact that a lawyer’s performance was in front of an audience added an important dimension to the enjoyment of the experience. All eyes were focused on me. The jury was composed of 12 critics to be persuaded; they watched my every movement. Spectators filled the courtroom to cheer their favorite players. The witness, the client, the court attendants, the court reporter taking down every word- all were there to see and appreciate. I could feel very important and special. A friend once told me, “When I’m trying a case, it’s the only time I feel totally alive.” (pp. 200-201) As in the literature, several of the defenders interviewed here compared the experience of being on trial to that of giving a theatrical performance on stage. One attorney, for example, relishes “the public nature of the job, the theater, standing up in court every day and arguing on behalf of the defendant. There’s a charge. There’s literally a charge.” [15] Another stated that “I think also that just about every trial attorney that I’ve ever known, and this certainly applies to myself, has a little bit of the actor in him.” [47] A third example is a self-described “frustrated actor” who describes the different “roles” a public defender might play in the courtroom: I guess, partly, I’m a frustrated actor. I’m a terrible actor when I have to actually read from a script. But, when I’m reading from my own inner script, I’m very good, even if I’m just playing a role. Trial lawyering- when you’re doing a trial, you’re really playing a role. Whether you’re playing the downtrodden defender, or the outraged advocate, or whatever it is, you’re really kind of playing this role, plus you’re keeping an eye on the jury and you’re trying to psych out what’s going to make them do what you want them to do. I love that. I really enjoy that, and I think I’m very good at it. [28] A different defender even majored in Acting for a time during college and discovered that trying cases is a drama unto itself:

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Public Defenders PD: When I went to college, I was an Acting major. Or should I say, I started off as an Acting major. I just wasn’t cut out for it. Being a trial lawyer is the next best thing. MW: So, it’s sort of like very theatrical, very dramatic to be in the courtroom? PD: Without a doubt. I mean, I always considered myself somewhat shy and introverted. Put me in the courtroom, and it’s a totally different story. I love of the thrill of being in the courtroom. I love the thrill of running my show. I feel like an actor on a stage. I feel like a director or a producer, putting this whole thing together. [2]

One last illustration is the attorney who agreed with Wishman that when on trial, a lawyer not only performs for an audience, but he or she becomes their focal point: everyone in the courtroom- jurors, judges, attorneys, witnesses, court officers, spectators- watch trial lawyers and pay attention to what they say and what they do. This defender even goes so far as to suggest that there is greater dramatic potential in the flamboyance of criminal defense than there is in the more reserved character of prosecution work: PD: It just strikes me that most defense attorneys, especially criminal defense attorneys are very outgoing. You get a very eclectic bunch who get into this sort of deal and then it’s interesting coming to work with them. MW: Why are defense attorneys more outgoing? PD: I think it’s the nature of the job. First of all, from a courtroom perspective, most prosecutors reflect a conservative vision to a jury. They represent the State. It starts with the way they dress. Traditionally, being a prosecutor is always Brooks Brothers, he gets his hair cut short, and nothing too flashy and that’s because he’s not trying to draw attention to himself in the courtroom, he’s just trying to present his case to a jury. Defense attorneys, on the other hand, are all about show, and deflecting attention away from the prosecutor’s case and presenting themselves to the jury as being an expert and being an aficionado: “Listen to me, I know what I’m talking about. The prosecutor is just a mouthpiece, but I, on the other hand, know what I’m talking about.” And once again, you can see it in something as small as in the way they dress. You’ll see the prosecutor there in Brooks Brothers and the defense attorney there in Italian suits. Why? I don’t know, but I’ve noticed it. It’s subtle, but it’s

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there. I think it has to do with the clients you’re working with. Your clients in criminal cases are looking for someone to put on a show for them in court. Looking for someone to yell and scream and to prance… MW: You like being the center of attention? PD: Sure. Without a doubt. [40] Trials for Public Defenders and Prosecutors One of this study’s more interesting findings compares the pragmatic motivations of the public defender to those believed to impel the prosecutor: it was originally anticipated that these would be substantially similar. For the most part, of course, it seems likely that they are. There is no reason to believe that prosecutors are not also energized by trial work, in all of its intellectual, competitive, creative and dramatic elements. The attorney quoted above, however, suggests that these attractions are more pronounced for public defenders. The implication is that for defenders even more than for prosecutors, as Feige (2001) puts it, “trial work is fun” (p. 60) [Italics added]. Several argue, for example, that prosecutors have more resources to work with, and because defendants and defense witnesses can be difficult, prosecutors as a practical matter enjoy advantages defenders do not have. Public defense, therefore, is a more difficult job, and involves a much greater challenge than does prosecution: MW: Now you said that part of what keeps you going is that competitive aspect of your personality. That’s part of what appeals to you about this job. But you could probably satisfy those competitive urges as a prosecutor. PD: But I couldn’t get joy out of that. I think I couldn’t get joy out of that. Part of it is I think it would be too easy. MW: Why is that? PD: Because they’ve got all the resources. They have the police. They’re prosecuting guilty people with the evidence against them. It’s almost like playing tennis with my youngest [child]. For a while I could get a kick out of that. [16] I found that by being a defense attorney, I was more of a lawyer. As a prosecutor, a lot of the work is handed to you. You have a lot more resources… You have as many law enforcement officers as you need working on your cases. Also [as a prosecutor], if you need things you can almost

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Public Defenders instantaneously get someone to go out and do it. As a defense attorney…, it was more challenging, and I liked it. [30] With prosecutors, it’s easy, they’ve got evidence. [Laughs] They’ve got cops. They’ve got unlimited resources. They can do almost anything you want. We’re working without resources. We’re working with clients who have somewhat limited intelligence. Witnesses who aren’t the best witnesses, if we have witnesses at all. [2] MW: Is that easy to do [get a jury to buy your story]? PD: No. MW: Is it easier for the prosecutor? PD: It’s not easy for either side, but the prosecutor has more of the policy and the law working for him, I believe. Even though you are innocent until proven guilty, most people want you to prove that you didn’t do it. [Juries] say, “Let’s make sure he didn’t do it.” They never say, “Let’s make sure he did.” [8]

Defenders also argue that at trial, criminal defense is much more creative work than prosecution. Not only do they believe that it is easier to prove a defendant guilty than it is to create reasonable doubts, but they believe the task of creating reasonable doubts requires flexibility and inventiveness that far exceed the prosecutor’s rigid mandate to prove a collection of facts according to a pre-determined set of legal standards: It’s just so much more fun for me. I think a prosecutor’s job may be hard, but they have all of their elements spelled out for them. You have to prove A, B, C, and D to get a conviction. As a defense attorney, you have to come up with a zillion different ways to get around A, B, C, and D in order to help your client. And I think it’s more challenging to be a defense attorney than it is to be a prosecutor. Especially in light of the fact that, as a defense attorney, your client isn’t always truthful with you. [8] MW: Wouldn’t you get the same kind of litigation experience [at the prosecutor’s office] as you’ve gotten here? PD: Yeah, but I don’t think I would enjoy it as much from a purely logistical point of view. There, you are given a set of facts and told to make it end up a crime. But if you’re a

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defense attorney, you aren’t as structured. As a defense attorney, you go at it any way you choose. So, I think it’s more interesting. Technically speaking, you have to make a lot more decisions. [14] It’s easier to be a prosecutor… It’s easier to debate a point, because a good portion of the decisions come on their side. I’m making so little of their job. I mean, you have the police tell you one thing, and it’s very easy to make that fall into the sphere of the law. And it’s more subtle and more difficult to poke holes in that, and find where someone’s privacy interests were violated or to find that there’s a case here that goes against that. You don’t have to do that as a prosecutor. You have to wait for those issues to come up. You’re not finding them and trying to bring them forward. You’re essentially rebutting what is said to you. [18] As a prosecutor, I think, you tend to try cases in a similar manner. The only creativity that you get involved in to a large extent in prosecuting cases is preparing cross-examinations. The presentation of your cases, similar types of cases, becomes very similar, whereas with defending cases, my opinion is you’ve got to use a lot more intuition. [21] While the defender above believes that there is little creative about prosecution aside from cross-examination, the lawyer that follows maintains by contrast that public defense work is more creative than prosecution because prosecutors do not have much of an opportunity to develop cross-examination skills at all: I just think as defense lawyers, we have much more of a chance to be better trial lawyers and to be much more creative. Prosecutors, more often than not, when they put a case together, it’s a direct examination of the witnesses. More often than not, defense attorneys don’t put on a case. Or the defendants don’t testify. So when prosecutors develop their trial skills, they don’t develop those cross-examination skills that you really need as a defense attorney. As a defense attorney, of course, every time you try a case, you’re crossexamining the prosecutor’s witnesses. And I think you have a chance to be much more creative with what you have to work with. [2]

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The Thrill of Victory The intellectual challenge, drama and creativity of defense work notwithstanding, defenders are aware that litigation opportunities are relatively infrequent. Still, many yearn for that which has proven elusive; as one of Heumann’s (1978) respondents commented: “Oh, it hurts. Sure, it’s like wanting to race cars and you’re stuck in a VW. You want to race Ferraris, but you’re putting VW’s together… but you do the best you can” (p. 58). Yet, even if trials are rare, defenders from time to time do try cases. Trials, then, continue to be important for defenders. The significance of litigation, moreover, is enhanced by the centrality of winning at trial for many public defenders.1 Babcock (1983-84), in this regard, declares that “there are few unalloyed joys in life” more gratifying than a jury acquittal (p. 179). A number of the attorneys interviewed here felt much the same way. According to one, “when you go to trial and you’re successful at trial- that’s the most rewarding aspect of the job.” [21] Another responded to a question asking about the best days for a public defender by matter-of-factly saying, “it’s a good day when you win a trial.” [23] Victory at trial, however, is meaningful for public defenders in a way it would not be if they were prosecutors. Prosecutors, of course, convict defendants much more frequently than defenders secure acquittals. Winning is particularly rewarding for public defenders, therefore, because it comes so infrequently. As the discussion in Chapter Three illustrates, moreover, triumph in a competition perceived by defenders to be tilted in favor of the prosecution is a source of special delight. The following defenders provide additional elaboration: I’m an extremely competitive person, and to overcome, as an underdog, is just a greater challenge. It’s easy to win if you’re the Dallas Cowboys. I got greater satisfaction when Princeton almost knocked out Georgetown [in the NCAA basketball tournament]. To me, that’s great! And that’s what goes on in the public defender’s office. When you win fighting for a criminal defendant, now that’s a big victory! [16] Given the terrible odds against success when you represent poor people accused of hideous crimes, when you succeedwhich isn’t often and which isn’t easy- you know it’s despite the odds… I want to be clear. It doesn’t happen all that often. If you do public defense work, you lose more often than you win. I recognize that. I’m not happy with it, but I recognize that. When you do win, again, it’s beautiful. [41]

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Absolutely the best thing is a not guilty verdict. When you believe in a case and you challenge [and you can show that] things aren’t always as they appear to be. You know your witnesses. You know your facts. And the prosecutor will just go on with what seems to be a dead case against your client. And you manage to convince a jury that beyond a reasonable doubt... that your client should be acquitted. [34] Two defenders talked about what it feels like to secure an acquittal for a factually innocent client. With so much at stake and after working so hard, each of them described it as “better than sex”: MW: What’s the best thing about this job? PD: The thrill of an acquittal. MW: Why? PD: Because you feel like you are taking on the entire system and you feel like you are single-handedly beating the state. You feel like David felling Goliath. Particularly when your client’s innocent. I feel pretty good about acquittals even when I think my client’s guilty. The innocent people, the ones who are really getting screwed, when you win those trials, there’s nothing better than that other than sex. Some people probably like it more. [36] I have, on occasion, defended somebody who I think was innocent. And if they were acquitted, it’s the greatest feeling in the world. Wouldn’t you feel like you’re the good guy? Like you’re the guy in the white hat riding off into the sunset? You sort of feel like the movie, Shane. He just had this gun battle, he killed the bad guy, and he’s riding off in the end. It’s just a great feeling… When you get an acquittal, it’s the greatest feeling. It’s the greatest high in the world. There’s no drug that compares with it. And when you get an acquittal, it’s better than sex. [Laughs] That’s how good it feels. It’s just the greatest thing you can imagine after working that hard. [2] Ego The defender’s delight in winning converges with the notion of trial work as a theatrical performance when one considers Wishman’s (1981) pronouncement that “all the successful criminal defense lawyers I knew… myself included, were egomaniacs” (p. 188). Not only are there defenders who enjoy the spotlight, but several also suggest that

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winning cases provides feelings of pride and accomplishment in a job well done. As one of the attorneys interviewed here states, “I think a lot of our job is ego. I don’t think you could find anyone in this place who can take losing very well. And I think we invest a lot of ourselves in what we do.” [18] An appellate lawyer maintains that “appellate judges certainly don’t get appointed to the appellate level because they’re soft on crime… So when you force an appellate court to reverse a conviction, that takes a lot of work, and I admire that. There’s certain amount of ego involved in that.” [41] What is most intriguing about all this, perhaps, is that the quest for victory may indicate a level of professional self-absorption that transforms the defense of a client into the pursuit of the defender’s own egocentric objectives: When you win a case, it feels good; it helps your ego. My old boss said that it always helps your client if his or her lawyer has a big ego. Because your ego says you want to win, your client wants to win. So there’s probably a little bit of that. [27] I’ve always believed that a lot of people who tell you they get into being a public defender because they want to help people, or because they want to see that the Constitution followed or that people are being oppressed, it’s hard… Most of the people I’ve seen- at least a lot of them, definitely myself- there’s a selfishness to criminal practice. Litigation in general. Most litigators in general. But for defense attorneys because of the way you showboat your cases- a little bit more. It’s more prevalent, I’ve found, with criminal defense lawyers. There comes a point where your clients’ needs, in a lot of ways, are secondary. Yes, you’re trying to win the case for your client. And obviously, I don’t want this person to go to jail if I can get them off. But to some extent, it is: “I don’t want them to go to jail, because I want to win my case. And this becomes, my fight. My case. Which I’ll do my way. To please me.” Pleasing myself by how good a time I have in court. And as a lucky side effect of that, it happens to be good for the client as well. Now, obviously, I wouldn’t do anything to hurt my client just so I could have a little bit more fun in the courtroom, but at some point at trial, this becomes a battle between two attorneys and you start to enjoy yourself a lot. You’re having fun. If you don’t go in there with a big ego, thinking that you’re better than anyone else, you’re never going to win. You can’t. It’s all about ego. If you don’t go in there believing in yourself completely and ultimately, I don’t see how you can survive. [40]

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Trials in Conclusion The terminology used by public defenders to describe what trying cases is like brings to light just how much they truly savor the experience. Defenders often describe litigation as something that is absolutely exhilarating: among other terms, trial work is described as “exciting,” a “thrill,” a “high,” a “charge,” and a “rush.” One defender even compared doing trials to a drug, and claimed to be “addicted” to it. Consider the remarks of the defenders that follow: I just love the thrill of being in front of juries, being in front of judges, arguing, cross-examining witnesses. It’s a great thrill. [2] This work, as a trial lawyer, is very challenging. I mean, there’s an incredible rush in being a trial lawyer and standing in a courtroom and arguing in front a jury. [19] PD: Getting down to the bare knuckles of doing a trial- a lot of people, it makes them nervous. But I enjoy that. Being before the jury. Questioning someone on the stand. That’s fun for me. Not the preparation- the actual trial itself. [Laughs] MW: Why is it fun? PD: It just excites me. That Perry Mason kind of stuff- even though it doesn’t really happen that way [that often]. [8] PD: Well, one of the things I’ve noticed about myself when I’m on trial is that my mind seems to work better and more quickly when I’m in the courtroom than any other time in my life. And there’s a kind of rush in experiencing that. MW: Why? PD: I think it’s because the adrenaline of being in the courtroom summons from you capacities that lie dormant most of the time. And it’s really amazing what happens to you when you’re on trial. And I know that it happens to me all the time. [47] PD: I started doing moot court in law school, and I realized I was good at it. I enjoyed it. There was an adrenaline rush. Once you start, you can’t stop. MW: What’s the adrenaline rush?

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Public Defenders PD: It’s exciting… There’s a fight or flight response. There’s definitely confrontational situations coming up, where you’re going to be dealing with the judge and the prosecutor and the jurors and the witnesses and your body actually starts to gear up, this fight or flight business. And when you’re going through the trial, it’s an adrenaline rush. When it’s over, there’s almost a sense that you’re coming down from a high. You’re almost looking forward to the next one. I was right. I knew I would want to do it, and once I started doing it, now I’m addicted to it, and I can’t imagine doing anything else. [10]

To defenders, then, trials are many things. They are intellectually challenging, they are dramatic and they are exhilarating. They provide important legal experience and may even meet certain emotional needs. Still, underscoring all of this is the professional validation that trials afford. Defenders, it cannot be stressed enough, think of themselves as litigators, and trials provide the opportunity for litigation. Consider, in conclusion, the distinctively personalized jargon defenders often use when discussing trials: “They do not say, ‘I’m doing a trial now;’ they do not ask, ‘Are you doing a trial this week?’ They say, ‘I’m on trial;’ they ask, ‘are you on trial?’” (McIntyre, 1987, p. 160) [Italics in original]. When defenders speak this way, it highlights the importance of trial work to their personal and professional self-identification; it is as if they momentarily forget the fate of their clients and reconceptualize the trial experience as a narrative within which they play the central role. And perhaps, in fact, they do; the defendant’s liberty may be at stake, but the defender is his lifeline. VARIETY AND AUTONOMY Notwithstanding the importance of trials to public defenders, it has also been suggested that one of the more attractive things about indigent defense work is the variety of tasks that must be performed. In the words of one of the Cook County defenders interviewed by McIntyre (1986): My work is divided by my desk work, in-court work, in-court trial work, negotiating, interviewing clients, motions, bench trials, jury trials- all of them are different. Plus all the time I spend out on the street, looking for people, looking for information. So, it’s not like it’s any one job, it’s not like it’s any one job you could get tired of easily. (p. 84)

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An attorney interviewed for this study makes much the same point: Litigating is fun. Winning a case is fun. Doing criminal defense work, going out in the street. Talking to witnesses. Viewing crime scenes. Putting it all together. That’s fun…! Every day is something new. What we do in a typical weekwe might go and meet a witness who will give their information on a murder or go to a psych facility to meet a client who’s crazy or be on trial or do a hearing where you have an issue where police illegally stopped your client, and caught a cop in a lie. It’s interesting. [37] Defenders, in addition, tend to have a considerable amount of autonomy in carrying out these tasks. Heinz & Laumann (1982|1994), for example, report that although in the eyes of an expert panel, criminal defense ranks only 23rd in overall prestige among 30 legal specializations, it is nevertheless tied for third in terms of “freedom of action” (p. 68).2 Eisenstein & Jacob (1977|1991), moreover, note that in Chicago, public defenders “scarcely felt the hand of their supervisors” (p. 119), something they also found to be the case in Baltimore. While the existence of such informal norms as “going rates” reflecting “what a case is worth” may foster collaboration- though perhaps not collegiality- among defenders and other court actors, they may also promote defender autonomy by limiting dependence on formal directives, official performance measures and supervisory demands. As Rossett & Cressey (1976) have suggested: Many of the defender’s tasks cannot be set down in explicit sets of rules, enforced by a bureaucratic supervisor. Codes and handbooks prescribe rules and procedures for the clerical and housekeeping parts of the job, but there can be no official rules telling public defenders how to maximize justice. Indeed the very term “doing justice” implies an expert-oriented system in which each employee’s duty is to use his best judgment. Assistants are expected to use discretion, initiative and ingenuity, rather than to comply with strict regulations from above. Their special knowledge of the law and their presumed knowledge of their clients makes each of them an expert on matters of individualized justice. Codes and procedures cannot tell defenders how to move a caseload either. Because these lawyers are experts, they have great autonomy, a broad discretionary power to sort their cases as

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Public Defenders they see fit. They cannot be instructed explicitly on how to dispose of these cases, any more than they can be instructed on how to do justice in each case. They are pretty much on their own, guided only by unwritten policy and custom. (p. 134)

There are those, to be sure, who are not all that comfortable with this sort of situation (Heumann, 1978; Lynch, 1997; McIntyre, 1987; Ogeletree, 1993, 1995). Heumann (1978), for instance, reports that in Connecticut, newly hired defenders receive little formal training and must learn the nuances of their job from experience. It would be misleading, moreover, to say that defenders are entirely free to act as they wish. Despite the independence that characterizes their largely informal tasks, they are still accountable to precisely those unofficial “going rates,” as well as to informal office expectations and other environmental constraints. Different offices, moreover, may employ a more or less intensive management style. The part-time defenders in the small town site studied for this project, for example, reported that there was little, if any administrative intervention in their work; even staff meetings were exceedingly rare. Eisenstein, Flemming, & Nardulli (1988), on the other hand, recount that notwithstanding one Erie County defender’s assessment that “I have complete latitude on the cases to do what I feel is in [the client’s] best interest” (p. 92), the chief public defender there was formal in tone, rigid in practice and evinced a “desire to establish and monitor compliance with formal policies [and a] willingness to reward and punish assistants” (p. 93). Even in this office, however, the authors report that compliance with the chief defender’s strict policies was difficult to carry out on an everyday basis, prompting one defender to acknowledge that “each guy does what he sees fit- what he wants to do” (p. 94). As in the literature, then, defenders interviewed for this study reveal that one of the things they enjoy most about their job is in fact the autonomy. According to one, “we don’t really have to answer to anyone but ourselves and our clients.” [18] Another stresses the degree of decision-making authority defenders have when it comes to deciding how to handle their cases: “here, I can try any fucking case I want. To a jury. I can give it to a jury. I can take any case I want. I can fight it as much as I want. I can appeal it. Do whatever I want.” [33] According to this attorney, in fact, such autonomy even includes an ability to pass a case on to another lawyer, if need be:

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MW: So the question then is, okay, same mindset, same kind of work, creativity, intellectual challenge, why do [some] people do that here and [others] do that [as prosecutors]? PD: Because there’s autonomy here! I do whatever the fuck I want with my case! I’ll go over there [to my superiors], and I’ll tell them, “I don’t want this fucking case! This guy’s a bastard! Here, take this fucking case! I don’t want it! Give him another lawyer!” They give him another lawyer! [33] It may be that such latitude is uncommon. Still, the nature of their job and the culture of their offices permit defenders the freedom to make many of their own decisions. For more experienced lawyers especially, indigent defense work may provide an opportunity for legal practice free from the uncomfortable scrutiny that comes with close supervision and trivial management demands. For many defenders, their autonomy may help to answer the question: “Why should I do this job?” Such a situation, moreover, may be typical of many public service institutions; as Lipsky (1980) has pointed out, in “street-level bureaucracies,” whereas upper-level management establishes organizational policy, lower-level subordinates have much discretion in effectuating and shaping these policies on an everyday basis. Interestingly, as the lawyer above suggests, many of those taking part in this study assert that prosecutors do not enjoy similar autonomy in their work; for many defenders, in fact, this is one reason why they themselves would never consider working as a prosecutor. Although this allegation will be given a more detailed treatment in Chapter Ten, the essence of the charge is that prosecutorial autonomy is inhibited in two ways. First, while there is great freedom in defense attorneys’ obligation to zealously advocate on behalf of their client, prosecutors’ ethical responsibility to seek justice and not convictions3 limits their independence. In addition, defenders say, because the chief prosecutor is an elected official, assistants must adhere to politically expedient policies instead of making their own decisions in order to maximize the chief’s political interests, and by extension, their own job security. THE IMMEDIACY OF CRIMINAL PRACTICE Many attorneys also do indigent defense because of the particular appeal of criminal practice; they use adjectives like “raw,” “real,” and “immediate” when comparing their work to legal specialties that lack these qualities and therefore would not be quite so enjoyable. It should be noted, moreover, that such assertions attach more to criminal lawyering in general than specifically to public defense; with minor

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changes in emphasis if any at all, one can easily imagine prosecutors making the sorts of statements that appear throughout this section: When I think about what [other work] I might like to do, I really can’t come up with anything that I think would be more satisfying in its better moments. I mean, I don’t think I have the wherewithal to work at a big law firm. There’s just something very raw and real about this work. [And I couldn’t work in federal court]. Federal court is this kind of, like, rarefied atmosphere. It’s like a gentleman’s club. It’s a very lofty intellectual pursuit, and by comparison we’re down here fighting in the mud with chains, but there’s something very exciting about fighting in the mud with chains! It’s very real. It’s very real life down here. [36] I was attracted to criminal law because it seemed exciting. It seemed very immediate. It wasn’t sitting at a desk shuffling papers. It had some sort of fascinating value to it, and that’s what drew me ultimately to criminal law. [40] While on their face, such adjectives may seem somewhat ambiguous, several of the lawyers interviewed for this study reveal that public defense may be described as “raw,” “real,” or “immediate” because of it involves everyday life. As one defender puts it, “I hate desk jobs… I think if I was sitting behind a desk and writing wills or doing contracts, I wouldn’t feel the same way about it.” [44] According to another, “the last thing I want to do, and I’ve done it, is sit behind a desk all day dealing with corporations and things like that.” [17] Criminal law, however, relates to “what’s going on with people”: If you’re looking at what my history was- so, I’m in law school. Of all the courses I’m taking, I’m attracted most to criminal law, constitutional law, things with those issues. I found contracts and property, torts, all those types of things in law very static and very boring… All the criminal law issues and constitutional issues which are interrelated were exciting to me. They had an immediacy. They involved people, in a desperate situation, as opposed to some arcane sort of contractual question. More what’s going on with people. [39] Still, different defenders describe the relevance of their work differently. One attorney, for example, suggests that the constitutional

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roots of criminal practice teach a very important civics lesson about the effect of governmental authority on daily life in the United States: PD: In law school, the criminal courses were far more interesting, and more relevant to me than the property course or the contract courses, stuff like that. The criminal coursescriminal procedure law, constitutional law... For me, criminal law was a perfect fit. MW: Why? What was interesting about criminal law? PD: Its relevance. To stuff I could understand. If you’re learning things about the Constitution, you’re learning things about circumstances in your life where it may have protected you. Somebody wasn’t able to do something because of the Constitution. You start to understand cases you read about. Criminal cases you read about. Why this happened, or why that happened. And it’s like pieces of a puzzle. You start to understand how it affects my own life. How it affects my life as a citizen of this country. And it’s just much more interesting and relevant to my own life than other courses were, other subject matter was. [10] Other defenders state that they find the high stakes of criminal law fascinating; unlike other areas of legal practice, after all, a person’s liberty may be at issue. This is much more compelling for many attorneys than arguing with other lawyers about someone else’s money: Civil cases are quibbling about money. I don’t really want to do civil work. I like criminal. It has some meaning. And you’re not just arguing about money. Somebody’s life or liberty is at stake. [19] PD: Even as a college student, I wanted to be a public defender, which I think is pretty unusual. So I think that was a significant motivator for me, but that crystallized when I went to law school and found criminal law fascinating. MW: What’s fascinating about it? PD: Well, I thought the legal issues were on human life experiences that have an impact on individual liberty. It was fascinating to me. The constitutional principles I found quite interesting. It just made sense to me. I felt property law, trusts and estates, just were meaningless. I just didn’t care. [16]

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Public Defenders MW: You said that in law school, you were attracted to criminal law. What was it about criminal law that was interesting to you? PD: Because it’s human beings as opposed to corporations or businesses or taxes or anything else. And because the stakes are high. You’re dealing with people’s freedom. And questions of guilt or innocence are attractive. What’s attractive about it is also what’s so different about it, because you worry and obsess about those things because the stakes are so high. [4] PD: This is the highest stakes there could be. It’s like the emergency room of the legal field. Liberty is on the line. In some cases, the sentence is so great that essentially, your life is on the line. That will always motivate me. I just don’t know that drawing up contracts or suing somebody- I don’t feel that that’s meaningful enough. So I don’t think I would give that job 100% like I do this one. [46]

Interacting with People The attorneys above find criminal practice rewarding because it relates to people. But public defenders value the interpersonal qualities of their work in other ways as well. Altruistically motivated defenders, as we shall soon see, find meaning in the opportunity to help clients who have a variety of legal or personal problems; this section, however, will explore other facets of the defender’s desire to interact with others. The lawyer that follows, for example, admits to having a sociable personality for which public defense work is particularly appropriate: PD: With my personality, I need to intertwine with people at work. I couldn’t do a job where I was at a computer all day, or something of that nature. Or doing research all the time. I have to intertwine with people. It’s just the nature of my personality… I have to do something where I intertwine. I’m a people person. I can’t stop being that. MW: You’re talking about the people at work, or the clients? PD: People period. I got to work with people, period. I can’t work with objects. I couldn’t be an assembly line worker or something of that nature. In the course of my work, I have to intertwine with people. [33]

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The next attorney asserts that there is something especially appealing about getting to know people from outside one’s standard social and professional circles: Routine court appearances for me are boring, but you know, you still get to interact with people. People who I wouldn’t normally interact with. People who are truly underprivileged, deprived, drug-addicted. People I wouldn’t ever see or speak to on a normal day, but now I am interacting with them. It’s a real people kind of thing. I like that. [2] Another lawyer is able to become detached enough to take an intellectual interest in the activities and interactions that characterize the criminal justice system and those who find themselves within it: I’ll tell you, it’s a lot of fun. It’s a lot of fun to get up there and argue in court. Every day, I’m finding new stories. It’s not that I’m writing them down, they’re not going to the screenplays or something like that. But it’s humanity. It’s the lives of people. And I really see diagrammatically this thing called the criminal justice system, and what it’s trying to do, and what it’s failing to do, and my role in it- sort of negotiating the twists and turns of this big massive machine. It’s a sea of personality. This office, the courts, the court personnel, defendants. I don’t want to sound too flowery. It’s a very specific window to the world we live in. It’s not the only window, but it’s a particular window. I certainly work in it. And it’s fascinating. When I walk into work in the morning, I don’t say, “Oh, well, it’s fascinating being here!” But when you step back and reflect, it is fascinating. [15] Several defenders, moreover, point out that the clients they interact with are unique personalities for whom they handle novel and interesting cases. The attorney above says with a nod to the old television series that “every case is a story, and there are a million stories in the naked city.” [15] Another affirms that “one day is never like the next day, so you’re never doing the same thing twice, ever.” [18] Consider as well the remarks of the following lawyers: I enjoy [that] you come across a lot of different situations, so it’s a continuous learning curve that you’re on. There’s a lot of cases that are similar, but every now and then you get

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Public Defenders something that, even in a standard type case, there’s a little bit of a different edge to this one because of whatever the circumstances. I enjoy dealing with people. [5] Before I came here, I was in private practice for [a number of] years. And I did every area. I did matrimonial work. I did Social Security work. I did negligence, contracts, real estate, a little bit of everything. Although that all would seem to pay a lot better than doing criminal work, criminal work is by far the most interesting. It’s challenging, it’s new, no matter how many cases you do- and I’ve done thousands and thousands of cases over [the] years of [my] practice- every case is different, every client is different. [2]

One last defender attributes the “flashiness” of criminal defensesomething that is lacking in civil law- to the sorts of people defenders typically interact with in the course of their work: PD: In criminal defense there’s a flashiness there. It’s probably more prevalent in the private bar because they can afford it more. But there’s certainly an element of it in being a public defender. It’s doing criminal defense that has a certain glamour. It’s sort of cool in a way! Much more so than saying, “Hi, I’m a lawyer.” You introduce yourself at your college reunion and you are asked, “What are you doing?” “Well, I’m practicing law and I work at Smith, Jones and Murray and I’m in Accounts Manageable.” MW: But why is it cool? PD: Because I think the public’s perception- when you think of lawyers, you think of one of two things. When you think of lawyers, you think of criminal defense lawyers. Or you think of some guy doing some giant medical malpractice case. You think of O.J., Johnnie Cochran or Barry Scheck or one of those people. These are the people, when they see the news, that’s who they see. They almost always see criminal attorneys. So people respond to that. Those people become in their way little media stars, which I’m not necessarily looking to become, but that’s what the public vision is. So when you’re talking to people, you say you’re a criminal attorney at a cocktail party, the first thing they say is, “Really, that’s interesting! You must have a lot of great stories. You must meet a lot of interesting people.” Certainly, they don’t say that to the guy who works in the tax department. [40]

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Voyeurism There may be more to the allure of criminal practice than interacting with others. For some defenders, “great stories” and “interesting people” are merely the beginning. One attorney, for example, speculates that public defense is intriguing because “maybe I have a little bit of a sense of the macabre.” [15] Kunen (1983) takes this much further, reveling unabashedly in his voyeuristic reaction to a particularly gruesome case: Mystery, intrigue, passion and colorful characters were important, but the more gory a case was, the more likely it was to be considered “a great case.” The Butcher-Knife-Trial was a particularly great case because of the butcher knife: a woman walking down the street with a twelve inch knife sticking in her head and out her cheek! (p. 118) To be sure, the everyday exposure to crime and criminals may render this sort of thing mundane, pathetic or revolting. And most defenders, one would imagine, are more circumspect than Kunen (1983), who readily admits that “only criminal law offered me the chance to visit the underworld, know intimately the secrets of life invoked by that threeword incantation, sex-and-violence” (p. 14). Still, it hardly seems farfetched that at some level, indigent defense work provides an exciting dalliance with people and behaviors that are to mainstream society mysterious, dangerous and taboo. Babcock (1983-84), for one, observes that “the heated facts of crime provide voyeuristic excitement” (p. 178). Most telling, perhaps, is Wishman’s (1981) assertion that all defenders, prosecutors and judges have been “titillated” by their involvement with crime and criminals. In his experience: With little prompting, my clients would describe their lives in lurid detail- passionate, desperate lives filled with violence, drugs and sex. I must confess I sometimes felt a vicarious excitement on hearing the exploits of these people so unfettered by normal restraints. They were living on the razor’s edge. (p. 100) A few of the attorneys interviewed here also indicated that the flirtation with the forbidden is a particularly absorbing element of public defense work. The defenders that follow discuss the issue at length:

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Public Defenders PD: I think that a certain amount of the seediness appeals to me. I read a lot of detective novels. There’s a certain fascination with that. I don’t know that I can really explain it. It’s just kind of like the whole underworld- I love The Sopranos. MW: Is it voyeuristic? PD: I guess. It appeals to all kinds of people. People are fascinated with this stuff. Crime sells newspapers. I don’t know, it’s part of the human psyche. The underside of human behavior is immensely attractive to people in some way. I mean, I don’t know, I would never consider in a million years doing some of the things that my clients do, but… I guess then in that regard it is somewhat voyeuristic, because it’s not conduct that people would ever participate in but they want to look at it and know about it. [36] MW: What is it about criminal law? Can you elaborate on the things you find attractive about criminal law practice that might have led you to work for either [the prosecution or the defense]? PD: I guess I find it exciting and interesting. You get to deal with rapes and robberies and murders and assaults! Large serious emotional issues that you try to help people out on. That’s what I find most interesting about criminal law. I get to delve into… the kind of really emotional and serious issues that make up the heart of people’s lives… I find that interesting. It’s people. There’s people there. I talk with them. I work with them- or against them as the case may be. And I learn something about someone else’s life. I guess I really find that interesting. And it doesn’t seem to be available working for, say, a municipality or a company. So, it seems interesting. Alive. MW: You had mentioned that it’s not everyday that most people get to become involved in rapes and murders and that kind of stuff. Is there almost a voyeuristic undercurrent? Is that what you’re saying? PD: [Pause] There might be. [Pause] It isn’t really voyeuristic in terms of peeking in without being noticed or something like that. It’s more an examination of. Looking at. Being concerned with. Feeling. It’s like a doctor would do. A doctor will get to look at by far the more intimate aspects of people’s lives. [It’s] looking into people’s lives that normally you wouldn’t get a chance to do. [43]

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CAMARADERIE Many public defenders speak of the affection they hold for co-workers who share their experiences, in all their glory and all their frustration: MW: What are some of the best things about this job? PD: The best things? Colleagues are amazing… My colleagues are my friends, which is something not a lot of people can say about their jobs- that they look forward to seeing the people that they work with. [18] Indeed, due in large part to the institutional challenges they frequently confront, there is a prevailing sense that outsiders cannot quite comprehend what it is like to be a public defender. The pressures of their work seem to draw defenders closer together in an atmosphere of community, mutual aid and encouragement. As Babcock (1984-85) describes it, “defenders know that the only panacea for the paranoia induced by the job is the camaraderie of a very special sort. The whole world is against us, but we have each other” (p. 312). Bellows (1988), like Babcock, worked with the District of Columbia Public Defender Service, and similarly recounts: One of the reasons that PDS is a jewel of a place to work is that we not only care about our clients, we care about each other… If we have an ethic it is mutual support. We attend each other’s closing arguments, cross-examine one another’s clients, handle court appearances for colleagues, commiserate, shoot the bull, and nibble on each other’s food. (pp. 72-73) This highly insular companionship, buttressed by experiences perceived to be fathomable only to those in the know, is a sign of an office atmosphere epitomized by personal intimacy and professional fidelity. One of the best things about being a public defender, according to one of the lawyers interviewed here, is “this office. There’s a lot of great people who support and understand and to whom you can complain.” [26] Another similarly says that one of the best things is “the support we give each other,” something that goes far to compensate for the lack of appreciation characteristic of most clients: “if this office weren’t such a good bunch of people, if I didn’t get support here, I wouldn’t be here.” [38] Several defenders assert that the ability to commiserate with colleagues who share their frustrations and understand their anxieties helps them cope and provides for a more

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agreeable work environment. The first two of the defenders that follow even admit that humor helps to ease the tension caused by the job: MW: Are the same things that led you here in the first place the same things that keep you going? PD: Well, I’ll tell you of another aspect. You talk about collegiality. [The] attorneys in his office, we’re doing all the same kind of work. It’s a shared experience. It’s a shared humor. There’s a cynicism, and a burnout level, but the reality is in any job you have a humor that arises from it. Listen, I don’t know how many times I’ve heard the same story about buying drugs and after a while you almost know what to expect. And you know, once in a while, we’ll sit around and have fun- nothing at the expense of our clients, it’s the work we do. We’ll sit around and we’ll bitch about judges, and we’ll bitch about prosecutors, and we’ll talk about clients who are pains. So, there’s a shared experience. There’s something fun in that… So I bring that out because that is part of what makes coming to work fun. So you do your work, and you strut your stuff in court, and you deal with people. So this is also a very good office. There’s a sense of collegiality. [15] MW: What are some of the best things about this job? PD: The people here. They’re supportive, smart, good people. That’s incredibly important. Being able to come back from court and talk to people and know you’re going to be supported is very important. This group understands what the work is. When someone comes back from trial- win, lose or draw- we shake their hand, because we know what they went through. There’s gallows humor here. I’ll listen to a lot of people’s problems and express the problems I have, too. [24] You walk around as two people. You walk around as a real human being, with what you think. And then you walk around with the impression that you have to give, because you don’t diminish what you’re doing for a living, and you don’t say something that a client is going to have to pay for. Like, you don’t walk up to somebody and say, “Oh, my clients are scum.” Or, “Oh God, they’re always guilty,” or that kind of thing. And that’s why working in an office like this, as opposed to working by yourself, or working in a public defender’s office where… they don’t communicate much, you can be that person openly when you’re with the people you

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work with. Because [you can] say [of a client], “He’s an idiot. He’s nuts. He’s crazy. What on earth does he think? How could he do this? Oh my God! For crying out loud, how can he be so stupid?” [19] I always liked the public defender-type environment. The people, the office, the kind of support you get. You get to bounce things off people. The camaraderie. It’s a good support group. [22] MW: Do you still see yourself here in another five years? PD: Perhaps. I like it here. I love the job. I love what I do. I’ve got great friends in this office. There’s nice camaraderie, which is the one thing I missed when I was in private practice. It’s nice to have friends, people you can rely on, other lawyers who you can shmooze with, run things by. [2] In an unambiguous indication of just how meaningful the companionship and support of their colleagues can be for some defenders, the next attorney alternately refers to the public defender’s office as “home, ” a “haven,” and a “family”: PD: I fight everyone all day and when I come back home, I need it to be a haven and someplace to forget. If the environment were less supportive, I wouldn’t want to do this. I loathe conflict. It makes me sick to have to fight over these things… MW: What is it about the camaraderie here? PD: You come back and it’s like a family. It’s dysfunctional, but a family. [9] Others observe in their office a powerful espirit de corps, something that is particularly noticeable when a defender returns from court after winning a case: We kind of share in each other’s wins here. If someone else wins, we feel we win something for the team. It’s not like the competition in some law offices, where ego gets in the way. [37]

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Public Defenders You come back to the office: “Oh, he was acquitted. He was not guilty.” And it’s wonderful, and everybody gathers and it’s positive. [10]

The attorney that follows adds that this sort of camaraderie is the result of friendships that emerge and develop among defenders who begin work at the same time and grow together as lawyers and as people: The office itself is a place, I think, people like to be at. There’s friendships. By and large, we have a team atmosphere. When people win in our office, really a zillion people congratulate this person and makes this person feel good about it. And you don’t necessarily have that in many other criminal offices. And people know that… People don’t necessarily want to leave a place they feel comfortable at. There are a lot of friendships. Actually, even the whole class starting … as rookies, in a way, [is] like a college experience. You have a freshman class and a sophomore class. And people often- not always, often- have friendships based on the year or so they were hired. People hired the same year as they were often go through their promotions together, they are often relatively the same age. They’re likely to get married the same time, have kids the same time. They bond that way. [41] Despite the existence of a central Public Defender’s office, most of the part-timers in the small town locale generally did their public defense work in the courthouse and out of their private offices; owing perhaps to quantity of work and their years of experience, there was a management style that left much of their efforts self-directed. And while several small town attorneys spoke of a defense consciousness that existed among the private bar, they conceded that outside of that wider and more attenuated grouping, there was little connection- and thus little camaraderie- among small town public defenders. LIFESTYLE Lawyers who wish to practice criminal law, but who would rather avoid the exhaustive demands and fiscal uncertainty of private practice also find indigent defense a suitable vocation. While there may be greater moneymaking potential in private practice, many defenders believe that a steady supply of criminal cases, a ready client base, a set salary and attractive benefits package, and a flexible work schedule are among the advantages that counterbalance putative losses in earning.

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A Completely Criminal Practice As this chapter makes clear, many public defenders have a natural interest in criminal work; according to one, “somebody’s got to do wills, closings, divorces. But it’s not going to be me. That stuff doesn’t interest me.” [37] For attorneys who prefer criminal law to other forms of legal practice, public defense offers the opportunity to do this kind of work exclusively, something that a lawyer formerly in private practice says makes public defense particularly attractive: I had been a lone eagle for many, many years. I used to do a little bit of everything. I did negligence work. I did real estate work. I did criminal work. I did appeals. I had a very varied practice. This [is] strictly criminal defense. So in one respect, it [makes] my life much, much easier. Because now I’m spending 100% of my time doing just what I love, just criminal defense. [2] A varied private practice of the sort described by the attorney above may not be a choice. Because there is only so much criminal defense work available, private practitioners may have to take other cases to make ends meet. As a different defender with private experience stipulates, “I actually enjoy doing criminal work, and there’s not enough in the criminal private bar.” [17] Another states: MW: So why do you do [public defense]? PD: I enjoy what I do. I enjoy it. MW: But you could get that enjoyment from regular private criminal defense stuff. PD: I could, I suppose. But it wouldn’t be the quantity of cases. [31] A final example on this issue is the attorney who maintains that “if I could have a private practice that was 100% criminal law, 100% retained, that would be nice, that would be very nice.” [15] In this defender’s own experience, however, such a goal proved to be unattainable: I opened up a private practice and I started out doing mostly criminal law… and that practice shifted because of the realities of practicing law. We… wound up doing 80-90% civil law. And I got back into that civil law thing… and I became miserable doing that… I was in private practice for

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Public Defenders [several] years and decided I wanted to leave the private practice and applied to a variety of indigent defenders and I took this job, which is getting back to the work that I really liked to do, which is criminal law. [15]

A Fixed Income and Good Benefits Whatever the size of a private lawyer’s criminal caseload, there are public defenders who have shunned or abandoned private practice because of its financial uncertainty. Being on one’s own means being in business, and making money is necessary to both sustain the business and support the lawyer. Full-time defenders, of course, have no such worries. The following attorney suggests that not only is a steady salary itself a reason for doing public defense work, but it also permits attorneys so inclined to concentrate on the constitutional, altruistic and critical objectives they bring to their job. In this regard, the pragmatic and political aspects of public defense may well blend into one another: One of the advantages of being a public defender is that you don’t have to deal with the mercenary aspects of being a lawyer. I think it’s especially clear doing personal injury law…, ultimately it’s just all about money. And as a public defender, you really don’t have to deal with that. Is it a lack of motivation? Is it a lack of ambition? I don’t think so. I think it’s really just that I’ve never been driven by the profit motive. And I think it sort of changes your focus on what you’re doing and why you’re doing it. The expression, especially in the private criminal bar is, “Waiting for Mr. Green.” So, being a public defender allows me to practice criminal law for all the political and constitutional and humanistic motivations and not have to deal with running the business, not have to deal with what I would call the mercenary aspects of it. So, I guess those are the reasons why I’m here, why I do what I do. [15] Part-timers who supplement their private practices with public defense work, of course, are already preoccupied with the “mercenary aspects of being a lawyer.” Still, such burdens can be alleviated by the fixed income, medical benefits and retirement plans they receive as government lawyers. Eisenstein, Flemming, & Nardulli (1988), for instance, report that the part-time public defenders in DuPage County, Illinois remained with the office “longer than most PD’s elsewhere not because they felt an ideological commitment to the defense of criminals or because they wanted to learn the ropes. Rather, they enjoyed the

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security and income base their position offered” (p. 188). Indeed, this is regarded as a particularly advantageous feature of public defense work by both part-time and full-time defenders: It just seemed like a good opportunity [to come to this office] because of all the benefits that were offered. I had been in private practice for a long time. I was on my own. But this offered a set salary, vacations, medical benefits. All the things that were lacking in private practice. So I immediately took up the offer… [2] There are a bunch of lawyers who do this because it’s a civil service job and it’s a foot in the door in the criminal justice system, and they can get experience real fast with a paycheck, as opposed to trying to do this on their own. [19] There’s a fixed income here. Very good benefits. There’s no complaining about the benefits. [15] But also you have to worry about getting paid [in private practice], so that was a difficult time. … It was an easy decision to come… to a salaried job. [26] I mean, is there any one specific thing that motivated me? No. Part of it was, it’s employment with the [government]. So, you know, there are financial reasons. One, the salary I receive. Also, by being a [government] employee, I’m entitled to benefits and also the retirement system. [5] Avoiding the Business End of Private Practice In addition to lacking entitlements of the sort described above, private practice involves commercial obligations that need not worry public defenders; as McIntyre (1987) points out, defenders have “the freedom to practice criminal law without being distracted by the business end of it” (p. 136). The administrative work and financial expense of running an office, for example, is something that can both divert private attorneys from their legal duties and eat away at their profits: Private practice was very, very interesting, and I loved every minute that I had, but it was much, much tougher. Much tougher than what I’m doing now. There was the business-end aspect of it also. You had to take the money, you had to keep

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Public Defenders the books and records. This is easier. I just have to concentrate on doing criminal defense. Nothing else. It makes my life much easier. [2] If you want to do criminal trial work, or do appeals where you’re getting a paycheck, you really need to do it in a public defender’s office or a prosecutor’s office. When I was doing a solely criminal practice, I was running all over the place doing my own secretarial work and I really wasn’t making enough money to support myself. [19]

Because public defenders have a set clientele, moreover, they have no need to go out and solicit clients of their own. In this regard, one lawyer recalls leaving private practice for public defense work and thinking, “I had nothing to lose. I don’t have to look for clients. I said, ‘fuck it, if I don’t like it, I’ll go back.’” [33] Consider as well the remarks of the following attorneys: [Private practice] would definitely be rough…, although you are your own boss, and there’s a lot to be said for that. I just wouldn’t want that extra responsibility right now. I wouldn’t want to be drumming up clients. [39] To do civil cases? I’ll go back to waiting tables before I practice law. I never aspired to be an ambulance chaser. It just doesn’t interest me. [37] MW: You didn’t like private practice in general? PD. No, actually I did like it. I enjoyed it. I just didn’t like it as a way of making a living. It was quite hard. It was difficult. It was a hustle. You were always hustling. MW: What do you mean? PD: You always had to look for clients. You always had to go out there and look for clients. And you’re chasing after clients to pay you. You do that. And it was hard. That was the aspect of the practice I didn’t like. [17] As this defender asserts, arranging payment may also be a particularly tricky problem for private practitioners. In the words of one of the Cook County defenders interviewed by McIntyre (1987): I like doing criminal law, but I talk to people all the time who are out on their own, and it just doesn’t seem that appealing.

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The least appealing aspect of criminal law is trying to get paid, and working out the financial arrangements. Here it is just like a little ivory tower. I get to just be here and deal with the law but not the money end of it. I never dread coming to work. (pp. 83-84) A lawyer interviewed for this study agrees that whereas public defenders receive a steady salary, getting paid can be an iffy proposition for a private practitioner representing criminal clients: PD: You work hard, you get paid, sometimes you didn’t get paid… Your kids got to eat. Your mortgage has to get paid. At least if you get a steady paycheck, it makes it much easier. At least I get paid, it’s kind of a nice thing. MW: It was hard to arrange payment, sometimes, in private practice? You are dealing with criminals? PD: They’re not the best payers. [Laughs] [2] Defendants who lack the resources to effectively litigate their cases create a financial dilemma imbued with moral implications for private practitioners and are a problem that public defenders can avoid. Quite simply, some private clients cannot meet the expense of the prolonged representation required for trial: There’s a lot of freedom here in this particular office and that makes it fun. I don’t have to worry about being paid or a client who has to plead guilty [because he can’t afford] to litigate the case. [37] I don’t have to bill for my time, I hate to bill my clients. Here, I have unlimited resources. I don’t have to worry about the clients’ ability to pay, or be economical. I don’t have to ask a client, “Can you afford this?” [24] Other private clients cannot afford important support services that are provided for free by the public defender’s office: I think [private practice is] probably more difficult just because you have to worry more about all the peripheral matters that I sort of don’t have to worry about. If I need to hire an expert for a case, I know we have the funding for me to do it, or whatever I need. If I need an investigator, I don’t

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Public Defenders have to ask the judge to assign one, I just go down the hall to our investigator. Those kinds of things. I think it’s a lot easier. [28] It’s sort of a nice niche here. All of my needs are taken care of. You’ve got investigators on staff. You’ve got a social worker here who can assist with our clients. We have a support staff. It makes things very easy. So when I go to court, I can concentrate just on taking care of my clients, trying cases, and not have to worry about all this other nonsense that I had to worry about in private practice. [2]

Lastly, for some defenders, working at a large firm would be just as unappealing as running their own practice; they find the practice of tallying billable hours and charging clients compulsive and distasteful: People always ask- people always ask- “Are you ever going to go to a private firm and be a real lawyer?” I don’t consider doing it now, and part of the reason I don’t is that I just don’t want to keep track of the hours. You have to do your hours. Your phone calls are monitored. You’re on this phone with this client for 15 minutes and you have to charge them. Your billable hours. I just have no interest in doing that. I just want to do a good job. I don’t want to make partnership and impress the higher-ups, and have face time and all that. [39] When I think about leaving, the thing that keeps me here and keeps me from going somewhere else is when I see the other side… When I see what you do in private practice. For example, it’s not that far off to say you bill somebody for what you think about in the shower at a firm. And then you write a letter, and you say, “I thought about it in the shower.” And you bill him for that just to confirm that you thought about it in the shower. That’s the kind of thing in the law that I don’t want to do. [38] Quality of Life The attorneys in this study make it especially clear that “quality of life” is an important part of why they are public defenders. Indeed, for the defenders that follow- both of whom previously worked in private practice- this is paramount among the reasons they do what they do:

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I like the work. I like what I do. I really like the job. There’s no other job I’d rather be doing- in law, anyway. I make a good wage. I’ve got time, for the most part. I’m scheduling myself. I like that- the schedule- which is different from other legal jobs where you have a boss telling you what to do. I try to work it out so I see my kids’ soccer games. It’s a predictable job in that sense. Quality of life is important to me. Quality of life keeps me here. The other stuff allows me to do this kind of work. It doesn’t bother me. It isn’t necessarily a motivating factor. It might have been originally, but not now. Now, it’s a nice side effect. [24] PD: I resigned myself to who I was. I figured out who I was. I got out of trying to get rich. I like criminal law and I’m not going to get rich. You make a living doing this stuff… MW: What do you mean when you say, “I realized who I was?” PD: I’m just some guy. I’m not a workaholic. I like to be satisfied with what I do. I like Criminal Law... I like having time to come home to my family and spend time with them. I’m not here on weekends. It’s a good life. [26] Public defense, in other words, offers lawyers sufficient pay for agreeable work that can be performed according to a schedule that permits free time for family and for leisurely pursuits.4 Such an arrangement, however, may be unavailable for private attorneys: I have friends who are in private practice and work for big firms. Everybody hates what they’re doing. People who work for those big firms, they work like dogs, they work 60 or 70 or 80 hours a week, they make a lot of money, but they truly hate what they do. Everybody here, we don’t make the money we’d like to make. But all the criminal lawyers [here] just really love what we do. You know, sometimes you got to make money. But there’s a balance. I think I found a balance here. [2] Reasonable hours, in contrast, are among the most salient reasons cited by the following lawyers for making a career of public defense: MW: This is your career? PD: Yeah

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Public Defenders MW: What is it that’s keeping you here? PD: [One thing is] the flexibility of my job. If I’m not on trial, my hours are pretty flexible. So, I’ll probably just always keep doing it. [18] You know, here, we work basically 9-to-5, five days a week. In private practice, I worked ten hours a day, and six, maybe seven days a week. It was just never-ending. This gives me a lot more free time. [2] It works for me in my lifestyle. There’s a difference in working in private practice where you have a responsibility to run a firm and submit billable hours. Here, I run my hours… It’s a lot more flexible. It works for me and I like that. [14]

Two lawyers even note that vacations can be both longer and much more pleasant for public defenders than for private practitioners who worry about their business when they are away from the office: When I was in private practice, I would steal a day here, or two days there. If I went away for a week, I would call the office every day, because every day was money. Here, I’m confident enough that I don’t have to call the office and a vacation can be a real vacation. I can take two weeks at a time. I mean, if I wanted, three weeks. That’s a big benefit. [30] When I was in private practice, I think in [all my] years, I may have had four weeks altogether, cumulative, of vacation. Now I’m getting six weeks a year here. I never had so much vacation in my life. It gave me a chance to spend time with my kids. I enjoy that. [2] JUST A JOB LIKE ANY OTHER The situation may, however, be even more straightforward than any of this. There may well be defenders who see nothing all that special or interesting their work. Or, what serves for some attorneys as motivations to do public defense for others may be more accurately described as derivative- if not unpleasant- byproducts of a job that must be performed to pay the bills. Such lawyers may have gravitated toward public defense for lack of a better opportunity or because nothing else was all that exciting either. Perhaps simple inertia prevents them from moving on to something different. Indigent defense, therefore, may not

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represent any special benefit or reinforce a defender’s self-concept or worldview. For such defenders, it is a job and not much else. This sort of ambivalence is perhaps best expressed by the defender that follows: MW: Do you still see yourself here in five years? PD: There are times I say that tomorrow if I win the lottery, I’m leaving, I’m out of here. But I don’t know. Maybe not. It depends on what time of day you’d catch me. On a day-to-day basis, who feels like going to work? Getting up in the morning? Drink the coffee, get dressed up, [travel] everyday, forever, no end in sight. The reality is you got to work. So I work. I try to find something for myself that is as palatable as possible. [26] CONCLUSION Litigation, variety, autonomy, the interpersonal nature of criminal practice, camaraderie, and lifestyle opportunities all function as major pragmatic motivations to do public defense work. Not every defender, of course, will necessarily be impelled by every such motivation. It should be noted, moreover, that while there are public defenders who believe that their job involves better litigation experience and more autonomy than prosecution work, these seem to be differences not of substance but of intensity; it is probable that prosecutors are motivated by a similar set of pragmatic concerns. What is much more likely to set public defenders and prosecutors apart, however, are the political motivations defenders cite when answering questions that ask “why should I do this job?”

_________________________ ENDNOTES 1 Researchers have shown that because dismissals and acquittals are so infrequent, public defenders tend to redefine victory in order to include such “almost-wins” as good plea deals, lengthy jury deliberation, and making prosecutors work especially hard (Heumann, 1978; McIntyre, 1986). The discussion in this section, however, has in mind actual victory. 2 Only environmental law and civil rights/civil liberties practice ranked ahead of criminal defense, which was tied with personal injury and general family (poverty) law. Heinz & Laumann (1982|1994) determined for each of 30 legal specializations a “freedom of action” score by asking an expert panel of law professors and lawyer-researchers the following question: “In the practice of some types of law, the practitioner is, to a considerable degree, a ‘free agent,’

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free to pursue whatever strategic course of action his own professional judgment may suggest. By contrast, the freedom of action of a practitioner of some other types of law is more highly constrained by knowledgeable clients or by organizational superiors who supervise and guide his decisions. Would you say that the practice of this type of law is characterized by: a high degree of freedom of action, above average freedom of action, average, below average freedom of action, or little freedom of action?” (pp. 68-69). 3 As Chapter Ten will make clear, however, many defenders also allege that too often, prosecutors forget this obligation. 4 One younger attorney, it should be noted, grumbled about the excessive time demands of the job, but speculated that things would improve with experience. A more experienced lawyer also seemed to disagree, commenting that public defenders should be satisfied with their role in “keeping the system honest,” because, among the other things that make indigent defense work difficult, “you don’t get good hours.” [19]

CHAPTER 6

Legal and Constitutional Motivations

INTRODUCTION TO POLITICAL MOTIVATIONS Of the Cook County attorneys McIntyre (1987) interviewed, 15 of 20 active public defenders, and approximately half of the 60 former public defenders report that “they saw public defending as a way to make a positive contribution to society” (p. 86). Similarly, one of the attorneys interviewed for this study calls public defending “valuable work.” [40] Another states that “it fulfills my social obligations.” [14] A long-time defender affirms that not only does public defense work “fulfill societal needs,” but that “I’m almost as excited about doing this work today as I was when I first started doing it.” [41] Finally, a younger attorney contemplated the attractions of public defense and offered these thoughts: I don’t like lawyers. They’re jerks, assholes who are not that intelligent, at least the ones that I’ve run into. And if I’m going to be a lawyer, I want to do it right, because I’m intelligent and it’s a noble cause. You’re probably saying, “Whooooah.” But it’s true. I don’t think I could do anything other than this. [45] As these excerpts reveal, making a positive contribution to society, doing valuable work, or pursuing a noble cause involves a different kind of motivation than the pragmatic impulses described in the previous chapter. Rather than looking inward to the benefits public defense provides for them, when defenders describe their work as making a positive contribution to society, it involves looking outward. It suggests that public defenders understand their professional role to possess significant social value and to express certain perspectives about the way the world works. As one of the attorneys taking part in this study intriguingly stated, “I don’t see myself an attorney, or [do this] for the love of the law. I’m only in it because I’m using it to do what I do, which is to be on the side of the defense.” [48] 93

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Being motivated to make a positive contribution to society also implies a much deeper personal investment in one’s work. One of the lawyers interviewed here asserted that public defense is “exactly where I need to be.” [42] Another said, “I just felt that this was where I had to be, this is where I needed to be and this is where I’m going to be.” [23] This attorney, in fact, went so far as to refer to public defense as “a calling.” What are described as “political motivations,” then, represent commitments unique to public defenders. They are often expressed in a spirited and ideological manner that serves to illuminate a distinctive public defender mindset, one that seems incongruent with the prosecutorial function and which therefore provides unlikely explanations for why prosecutors choose their line of work; as another of the attorneys interviewed for this study put it: “I think some people are born prosecutors and some people are born defense attorneys.” [4] Notwithstanding the institutional challenges that confront public defenders, there is much to suggest that the motivation to do indigent defense work emanates from deeply held beliefs about crime, criminal justice, and the prevailing social order. If this is true, then the appropriate questions are more than just whether less practiced defenders underestimate or fail to recognize the more undesirable aspects of their jobs, or whether more practiced defenders simply learn to tolerate these concerns and to continue on in spite of them. Rather, it must be asked whether public defenders, regardless of experience, find that indigent defense work contains rewards that overcome such dilemmas. Indeed, it might be the case that such considerations are so gratifying that for many public defenders, these challenges are not really all that problematic. It might be that the defense of guilty clients and the denigration of those that stand in their way are undertaken not with regret but with eagerness and determination. It might be that the stigma of ineptitude and “double agent” allegations are wounding but ultimately unimportant. It might even be that to public defenders, their clients- though perhaps difficult to deal with- are figures who are as much or more understandable and sympathetic as they are incomprehensible and disturbing. It might be, in sum, that public defenders consider their job virtuous and honorable rather than thankless and morally dubious. It is not for nothing, after all, that with a Shakespearen flourish, Babcock (1984-85) refers almost conspiratorially to herself and her fellow public defenders as “‘we few, we happy few’” (p. 313).1 A former defender herself, it is as if she knows something about what motivates public defenders- about why they do what they do- that has thus far eluded the detection of those who research and comment upon the criminal courts. Chapters Six through Eleven will therefore

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examine public defenders’ political motivations: legal and constitutional motivations, altruistic motivations, and critical motivations, the latter including anti-establishment motivations, antipolice motivations, anti-prosecutor motivations, anti-judge motivations and anti-corrections motivations. Individually and taken together, these chapters provide evidence suggesting that specific political motivations provide very compelling reasons for public defenders say to themselves: This is why I should do this job. LEGAL AND CONSTITUTIONAL MOTIVATIONS Public defenders believe they make a “positive contribution to society” by giving meaning to both the defense function and the longstanding legal and cultural values upon which the American system of criminal adjudication is premised. In particular, many defenders do their work in order to deliver the legal protections enshrined in the Constitution, to sustain the American adversary system, to uphold the fairness of the criminal process, and to create a safeguard against a government that, without their services, they believe is likely to intrude upon the liberties of not just the defendant in question, but those of society in general.2 The Constitution and the Law The Bill of Rights, as we all know, protects civilians from the power of the State. As such, the Fourth Amendment guarantees freedom from unreasonable searches and seizures, while the Fifth and Sixth Amendments contain several safeguards for those facing criminal accusation; the latter, of course, has been interpreted to require that many of those too poor to afford a lawyer for their defense will be furnished one by the State. Straightforward though it may be, the fulfillment of these rights is one reason why public defenders are motivated to do what they do. In response to the question “how do you defend someone you know is guilty?” Feige (2001), for instance, succinctly declares, “I believe in the Constitution” (p. 60). Similarly, when asked why public defense work is enjoyable, one of the lawyers taking part in this study replied, “I like it because I believe in the Constitution. I believe in the Bill of Rights. That sounds like real hyperbole, but it’s not. I’m just saying I believe in those concepts.” [31] One of McIntyre’s (1987) respondents elaborates on this notion by stating that “everyone deserves a trial, a fair trial, and with that right to trial you have a right to a lawyer. I’m that lawyer. It’s the American way” (p. 142). Defenders interviewed here offered comparable thoughts, remarking that “I think all people are entitled to legal counsel [and] you still have an obligation to defend them and they still have

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certain rights under the Constitution,” [12] as well as, “I strongly believe in the concept of ‘innocent until proven guilty,’ and that everyone has the right to a viable, effective defense.” [15] The idea, in other words, is that the presumption of innocence and the guarantees of the Constitution apply to all- indigent defendants included- and that everyone is entitled to quality representation by a defense attorney: Most of [doing this job] is simply a certain set of priorities that necessarily include at least giving a damn about the Constitution, giving a damn about clients’ rights and the rights of those who are charged with a crime. [42] We’re all entitled to a competent defense. Everybody. Whether it’s the guy who’s got four prior felonies and rapes a nun on the church steps, or it’s some kid who got caught driving while intoxicated on prom night. Everyone’s entitled to a lawyer who knows what they’re doing. [40] These assurances, as the preceding lawyer makes clear, are meant to apply regardless of how serious the charges are or how guilty the defendant seems. As Deutsch (1990) points out, “the Constitution extends to everyone no matter how heinous is the crime of which they’re accused” (p. 391). There are defenders, in fact, who are unprepared to render any judgments about their client’s guilt. This determination, they maintain, must emerge at the conclusion of the criminal process;3 according to one of the lawyers interviewed for this study, “nobody’s guilty until the apparatus says so in a constitutionally orderly and lawful way.” [36] Others make much the same point: MW: Ever get a case, though, where you were convinced your client was factually guilty, went to trial, and got an acquittalPD: Sure. I mean, this is a perceptual problem with the public in terms of what I do in defending a client: “How can you defend a quote ‘guilty person?’” I always start out by saying, “You’re incorrect. I never have defended a guilty person, okay? Because guilt is something that I don’t determine and you don’t determine. Guilt is something that occurs after a trial by jury or judge.” [21] It’s not my position to determine whether they’re innocent, guilty. That’s something, if they want to plead, they’re making that determination. If they’re going to trial, it’s either

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the judge or jury that’s making that determination. I can’t. I shouldn’t. I don’t want an attorney to. I don’t want any other attorney to be doing that. [5] If I don’t believe somebody, it doesn’t matter. I still defend them. That’s my job. I give them the best defense that I can, if that’s available. It depends on what they want to do. Because whether I believe them or not is irrelevant. That’s up to a jury in the end. [20] Still others argue simply that questions of guilt and innocence are of no consequence. Public defense, they insist, involves upholding the protections the law affords to indigent defendants- including the right to counsel- and making sure that their clients cannot be convicted absent proof beyond a reasonable doubt, whether a criminal act was in fact committed or not: PD: As far as actual innocence, I don’t know- I don’t think about it too much. MW: Why not? PD: It flat-out doesn’t matter to me. It does not matter if every one of my clients were guilty. It wouldn’t matter. Because I know that my only job is to worry about their rights. And for me, the Constitution is like the Bible. That’s what it is. The Constitution is all I defend. I don’t care if they’re guilty. If they’re guilty, fine. The prosecution will probably be able to prove it, and in 95% of the cases, they are able to prove it. So it just doesn’t matter to me. [42] I’m 100% behind my clients. My personal feelings don’t enter it at all. I have clients, sometimes, who spend an inordinate amount of energy trying to convince me that they are innocent. And I say, “Why are you doing that?” I tell every one of them I will work just as hard for them. Some clients say, “How can you represent me?” and I say, “Look, you’re entitled to a lawyer, and I’ll work as hard as I can for you.” [24] Some people will tell you, “I couldn’t do defense work because I couldn’t defend guilty people.” I have no problem doing that. Does it make you think at night? Sure. But you have to make sure defendants have a fair process. [7]

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Public Defenders There’s an intellectual analysis that’s done, and it’s like, “This is not enough proof and I don’t care if he’s guilty or not.” If there wasn’t enough proof, he shouldn’t have been found guilty, and I don’t care whether he was guilty or not. If there wasn’t enough proof, he shouldn’t have been found guilty, even if he was guilty. The system doesn’t work that way. [19] It’s not about guilt or innocence. Absolutely, that doesn’t factor into the equation at all… You never sit there and think about the guilt or innocence of the person. That’s not what your job is. Your job is to look at the facts and look at the procedures and defend this person’s rights and do whatever it is that’s in their best interests. [34] If I have a client who has had, say, anal sex with 12 little boys and admitted to it, and admitted to it because the cops came in and violated his rights, that’s awful. But there’s a reason why we have the rules that we have. [45] How do I defend [guilty] people? Because it’s not my job to prove their guilt. It’s my job to make sure that their rights are protected, and paramount among those rights is that they not be found guilty unless there was sufficient proof of guilt. [21] Well, it all boils down to, regardless of whether a person did it or not, I don’t care what they’re accused of. It could be a capital crime. It could be a petty larceny. The State’s got the burden to prove beyond a reasonable doubt that the person did it. And our job is to make sure that they follow every single fucking rule along the way. And I don’t care whether the person did it or not, if the State can’t prove it then the person shouldn’t go into the jail. [29]

In a more general context, several attorneys note that public defenders fulfill a role mandated by the American adversary process, and it is work that must be performed even if the fruits of their efforts will benefit guilty clients who have the potential to threaten civic harmony and, as a result, subject the defender to public opprobrium. As Babcock (1983-84) asserts, “yes, it is dirty work, but someone must do it. We cannot have a functioning adversary system without a partisan for both sides” (p. 177). Bellows (1988) elaborates on this point:

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I became a public defender because I believe passionately in our system of justice, the adversary system. Without a lawyer fighting with all his strength to advocate for his client, without a lawyer as competent and able as the prosecutor, the system simply is not legitimate. I help make it legitimate and that is why I do what I do. (p. 97) Attorneys interviewed for this study were similarly philosophical about their adversary roles. According to one, “I honestly believe that our system is a good system if it’s done properly. I truly believe that it has to be adversarial. There has to be a defense and there has to be a prosecution.” [17] Consider also the views of the following defenders: To me, for all the talk of the American dream and the beautiful system we have, what makes it real is we have here some of the absolute sharpest, smartest, hardest-working lawyers providing very, very, very high-quality defense to people who are accused of the most heinous crimes, the most disliked people in the community. And that to me, is the beauty of our constitutional system. If you are serious about giving constitutional rights and protections, the only way you can have that is to have a strong adversarial system. And the only way you have a strong adversarial system is to have very, very rigorous counsel for the accused. [41] You’re entitled to counsel. It’s a fundamental understanding that you’re entitled to counsel. And effective counsel, at that. There’s an adversarial system set up, such that you are against the State. And the way it’s supposed to work out is that with these two equal, quality forces fighting it out, what should happen will happen. [46] KEEPING THE SYSTEM HONEST Apart from the defender’s adversary role, questions about whether the conventions designed to assure a fair criminal process ought to be interpreted broadly or narrowly have long been subject to contentious debate; it should come as no surprise that public defenders tend to opt for the expansive reading. Whatever the prevailing view, however, lawyers interviewed for this study take very seriously their own obligation to make sure police officers, prosecutors and judges assiduously obey the constitutional, statutory and ethical regulations

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that govern their behavior. Above all, the State has the burden to prove a defendant guilty. The defenders’ job is to put the State to its proof: It’s not my burden to prove someone’s guilt. That’s the burden that’s on the State. If they think someone’s guilty, then they need to prove it. And what I’m doing is challenging what their evidence is. [18] My job is to defend them. I will do the best job that I can to defend them. And I say to the prosecutors, “If you have a case, prove it. If you don’t have a case or you can’t prove it, this person does not belong in jail.” [30] It’s the obligation of the prosecutor to put forth the case. Whether somebody’s innocent or guilty, or somewhere in between, they have to put forth that case. If they can’t do it or if they don’t do it, that person should not be convicted. And… whether a person is innocent, guilty, or not- it doesn’t matter. The prosecutor has that burden, has that duty. [5] Somebody tells me they want a trial- it is our system that says the prosecution must have sufficient evidence to prove their guilt beyond a reasonable doubt. He doesn’t have to do anything. He may have committed an act he could be found guilty for. But if they don’t have the proof, our system says he goes free. And that’s very clear in the Constitution. [21] A fair process, however, requires more than the establishment of requisite facts. Prosecutors must do their job appropriately, to be sure, but in addition, police must follow proper procedure, judges must be consistent and objective, and no deviations from the law may be tolerated- even in an effort to apprehend or convict a dangerous person. Only then can it be said that the system is working the way it should. In this regard, defenders argue, they work to “keep the system honest”: People tend to think that defense attorneys are in favor of crime, which I kind of find odd. Because I personally would have no trouble sitting on a jury and voting to convict if I thought that the evidence was there and the guy was guilty. If it were proved beyond a reasonable doubt, I wouldn’t hesitate for a second to vote to convict. That’s part of it all, because it’s keeping the system honest, it’s making sure that someone’s properly charged, that they did what they’re

Legal and Constitutional Motivations charged with doing, and that the prosecutor has proved that. To my satisfaction. And if so, then they should be convicted. [36] [There’s] a T-shirt [that says], “Public Defenders are the Last True Defenders of our Constitution.” And I really do believe that. It’s amazing to me when I speak to folks, and say, “We’re here to protect the Constitution. All they’re trying to do is continually limit the application of the Fourth Amendment, the Fifth Amendment, the Sixth Amendment.” I just sit back and I’m like, “They’re creating more exceptions to the Fourth Amendment. How is that preserving the protections of the Constitution?” I just don’t get it. It’s really hard to explain to people because what they see is a guilty person go[ing] free and that’s not justice. But it may be the most absolute and purest form of justice in our system of laws. Even the guilty should go free if you didn’t follow the law in the Constitution. So, it may be that that guilty person walking away is the purest expression that we are a society of laws and in the Constitution is a principle that we are willing to adhere to- that a guilty person goes free. [35] So, where does the defense attorney come in? The defense attorney is that person who says, “Stop. You can’t do anything to my client. You can’t even take a step until you follow the law. Until you follow the procedure. Until you show us that you have something to make this case happen.” And so, as a defense attorney, particularly as a public defender, basically my power is to just employ rules, the tools of the trade, use the statutes the best I can to say, “Hold on! You can’t do anything to this guy. You have to prove it!” [15] To me, it’s much more important to hold the government to these rules- the constitutional rules, the statutory rules, the bench rules, etcetera. And this idea that, “Well, in this case, we’re not going to follow the rules because we know he did it?” Then the rules don’t mean anything. And it really undermines the entire integrity of our system. And I’m working hard to prevent that. My goal, and my job, is to- and you may think this isn’t possible- see where there’s a failure of the entire system to abide by its own rules and to point that out. [41]

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Public Defenders You gotta play fair. You gotta do it the right way. There’s a reason why we have the rules that we have. You, as an individual police officer who has a goal of getting this one person in trouble or getting him convicted, in jail, whateveryou’re not allowed. Because if you universalize the behavior, it’s anarchy. You know, everybody do whatever they want because they have a particular goal in mind. They just can’t. You have to follow the rules. It’s easy enough to get what you want just by following the rules. But, they don’t seem to always want to. [10] The public hates what I do for a living. I’m in the process everyday of simplifying, explaining. It’s quality control. I am here and in place to make sure everything is working appropriately. Did the police do what they are supposed to do? Judges? Did the prosecutors exercise their discretion appropriately? Did I do everything I need to do to make sure they all acted properly? [9] There’s guilt, and then there’s proving your case at trial, and there’s also his rights up until that point. He may be guilty. But if the police illegally searched him, and if the drugs they found on your defendant is suppressible, then he’s going to be acquitted of that charge. It’s going to be dismissed. That’s your job- to police the police. [39] Even if I think he may have done it or something to that effect, it bothers me when someone is convicted and people take shortcuts. I really believe in a system. [Rules have] to be followed because that’s what keeps it from falling apart. [17]

In cases where the court does in fact set free someone who has committed a criminal act, public defenders are adamant that they bear no responsibility. For one thing, legal rules are in place for a reason and are there to use on behalf of criminal defendants: I have no problem. See, that’s one thing. I was made to do this. I have no remorse for anything I ever did. I don’t think about it twice. I never think about. I have no regrets. I represent these people to the best of my abilities. I’m happy to know that I represent them. Some of these guys are bad. They should be in jail. But as long as I’m doing my job, and I’m using the law appropriately, and I’m not tricking anybody and

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I’m not doing anything illegal, I don’t think twice. The laws are made to use. Corporations use the law; they use the loopholes. And nobody thinks it’s a problem if I save $500 million. But if I save a guy from the death penalty or from going to jail, who robbed somebody and clearly is guilty- for some reason they think something is wrong with that. The law is there to be used. And I use it to the best of my ability. And if I use it better than the other guy, that’s my job. That’s my luck. [33] If anyone is at fault, rather, it is the police or the prosecution: had they done their job properly, the defendant would indeed have been convicted. Defense attorneys should not be criticized for doing what the law requires them to do. In this regard, the defenders that follow describe how it feels when they establish in court some kind of police or prosecutorial misconduct that results in the release of factually guilty clients. Interestingly, there are those who concede that when a particularly disreputable client is acquitted, some part of them may wish that the police or the prosecution had done their job correctly: MW: Does it come to a situation where you say something to the prosecutor in order to secure a plea bargain, or you say something at trial, and you say to yourself, “Man, I hope they don’t even buy this argument.” I mean, you do what you have to do, but in the back of your mindPD: Yes. In the back of your mind you’re saying, “I hope this guy goes to jail, because he shouldn’t have beat this person like this,” or “He shouldn’t have robbed this person.” But I have to do my job and I can’t blame me for doing a good job and putting him back on the streets. Because it’s the prosecutor’s job to prove the elements of the crime. If they fail to do that, then there’s nothing I can do about it. I can’t do the prosecutors’ job for them. [8] It doesn’t make me ecstatic [when guilty clients are released]. It doesn’t depress me, though. It makes me think, “Well, if those cops weren’t lying, then my client wouldn’t have gotten acquitted.” And then I move on to the next case. It doesn’t depress me. It just makes me think, “Well, if the prosecutor had done a better job, then- or if the cops hadn’t lied-” It doesn’t make me happy. [Pause] But it doesn’t make me

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Public Defenders unhappy. I don’t have a legal problem with it either, because that’s what our Constitution is there for. [27] MW: How does it make you feel in the civic sense when you’ve got some guy and he’s a bad guy? I understand what you’re saying in terms of the larger abstract principle. But when you’ve got that guy and he’s your client and he’s a bad guy and this principle works in his favor. How does that make you feel? PD: I’ve got mixed emotions. But it makes me feel that on the truest level that the system worked. The system worked. At times I can leave, maybe, not wishing it didn’t work, but wishing that the people who were part of the system did their job better. It’s all too quick, because of the media spin that needs to be out on a story. I’m a prosecutor. I just lost. What am I going to say? The defense lawyer did this. Or the judge! That judge suppressed evidence! We had a confession! God, you let a guy go who confessed! That’s great to try to take the heat off. Why did the judge suppress the confession? Because the police officer violated that individual’s rights. The police officer knew that person’s rights, and he violated them nonetheless. But they’re going to blame the judge for being too liberal. They’re going to blame that shyster defense lawyer for finding those loopholes. No one’s going to say let’s improve the police work. Let’s tell the police you don’t violate the law. That gets convictions thrown out. Let’s follow the law. Let’s adhere the law. Keep working it. If you work and you work and you work, you will do the right thing. As soon as you try to take a shortcut, and you violate the law, you run the risk of throwing a conviction out. I don’t get convictions thrown out. It’s the inappropriate actions by the police that get convictions thrown out. It’s not me. It’s the jury’s perceptions that they’re lying or witnesses are being inconsistent that get convictions thrown out… I really do believe that we have the best system, but as soon as we get corrupt and cut corners, we’re doing our whole legal system a disservice. And unfortunately, I see too many corners being cut. We just shouldn’t do that. [35]

Others are not as introspective; the defenders that follow have no second thoughts about their role in setting factually guilty clients free:

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I don’t think about it. I’ll occasionally do something and get a good result, better than you should. But that’s the prosecutor’s fault. They had an obligation and they blew it. If they did their job, that wouldn’t have happened. That’s the price you pay for a free society. I don’t worry about that stuff. [24] I’ve gotten bad guys acquitted. I’ve gotten bad people acquitted. I’m proud, in a sense, that I’ve done my job. If a guilty man goes free, then somebody screwed up. Maybe the prosecutor. Maybe the cops. And that’s just how the system works. Somebody was not doing their job. But if I’ve gotten an acquittal in a case, especially for a guy who’s guilty, who maybe deserved to be convicted, but for the fact that the evidence wasn’t there in this particular instance, I know I’ve done my job. I can go home and I look in the mirror, and maybe the bad guy is out on the street, but maybe the prosecutor should be looking at himself and seeing where he screwed up. Maybe the cops should be looking at themselves in the mirror and seeing where they screwed up. I know I go home and feel good about what I’ve done. Because I’ve done my job, and I’ve done it well for that particular day. [2] The system is supposed to work. You’re supposed to be able to prove him guilty if he did it and do it the right way and then you’re supposed to sentence him to whatever is supposed to happen. And it’s not my responsibility if you don’t do it the right way. And believe me, I’ve won cases where they were just stupid. Stupid mistakes by the prosecutors. And it’s like, I don’t walk out of there feeling guilty because I won. [19] Several defenders even go so far as to suggest that on the streets and in the courtroom, if the public is to have faith in the criminal justice system at all, it is because of the work that criminal defense attorneys do. Because they vigilantly scrutinize and are willing to challenge the behavior of police officers, prosecutors and judges, investigations, arrests and prosecutions will be conducted in closer adherence to the requirements of the law: The prosecutor’s office works at a higher standard because we hold them to a higher standard. That doesn’t show, at least in a measurable way, but it’s the easiest thing I can show for why this [work] is important. [41]

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Public Defenders You can see that the quality of the defense attorneys, and that’s usually the assigned counsels- either through the public defender’s office or the attorneys taking the assigned counsel cases- those attorneys determine the quality of the prosecutor staff, the judges, the need to follow the law, the sense of whether you’re getting railroaded or not, of whether people follow the rules. And you have to be satisfied with that. Because you don’t get paid real well, you don’t get respect, you don’t get good hours, you have to be satisfied with the fact that somehow, you’re keeping the system honest, you’re giving people the right to counsel, even if you’re going to lose anyway, because they’ve got a good case against them. [19] In my experience, the quality of a prosecutor’s office in any given community, the quality of a police department, is only as good as the quality of the criminal defense bar in that same community. If the criminal defense bar is lackadaisical, the prosecutor’s office becomes lackadaisical, too. They let things slide. And not only do I think they’re letting cases be prosecuted that they shouldn’t be prosecuting, but they’re letting cases that should be prosecuted more heavily slide as well, because no one is leaning on them. And as a result, when you lean on them on small details too, say, this case doesn’t deserve to be prosecuted as heavily as it is, you people are going to have to work harder, I’m going to write the motions and do the hearings and fight and fight and fight you- they start to see all the things they could do and it actually pushes them to be better lawyers. As a result, those prosecutors are becoming better lawyers and finding better ways to get better convictions. And if they keep doing that, it makes the defense bar work better. And as a result, the system works better if everyone’s being pushed to their limit. If the defense bar slacks off, I don’t think you’re really convicting more people. I think it’s becoming ultimately a sloppier system. [40] I insist on doing everything possible. And in that way, I view myself as part of the justice system- though the justice system would probably gladly disown me- in that the justice system only works if everybody has someone doing the best they can for them, because the more horrible the accusations and the more proof there is about it, the more that person needs someone to do everything possible for him, so that the justice

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system- everybody out there, me, you, everyone out there- can be assured, “Okay, that guy is going to prison, he deserves to go to prison. He’s getting a light sentence? He deserves it.” He got everything he possibly could get. Everyone did everything possible to try to help him. They couldn’t, he’s going to prison. That’s the way it ought to be. [43] An appellate lawyer makes a similar sort of argument: Particularly on the appellate level, we win so infrequently and such a vast number of clients are guilty, people wonder how can you do that. And I tell them, we have a function that’s different from trial level attorneys in that judges view us as a pain in the butt. And they’re concerned about us overturning their convictions. Judges, and prosecutors too. So they go out of their way to make sure the trial is fair. Not so much out of concern about the fairness of the trial for a particular defendant, but to make sure that they don’t have to do it again. I think they view our section as having more power than we actually do. They’re concerned about, “Oh, we’re going to have to try this case again, because that appellate office in that public defender office zealously represents these people on appeal.” So I have that function, I think, that by working hard on each appeal, I’m almost a check on the trial system. [16] PROTECTING DEFENDANTS AND PROTECTING US ALL In the minds of defenders, safeguarding their client’s rights goes well beyond the interests of the individual defendant; it is something that has wide-ranging societal implications. By defending accused criminalsand the guilty among them in particular- these attorneys believe that they function as a barrier that prevents government encroachment on the liberties of the law-abiding public. In the words of one of the public defenders interviewed by McIntyre (1987): Why do I do it? I do it because the day I start laying down and not doing my job is the day that people who aren’t guilty are going to be found guilty, and that person might be you because the whole system will have degenerated to the point where they can arrest you and convict you on very little evidence. So I am protecting you, I am protecting the middle class. (p. 145)

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Similarly, Deutsch (1990) declares that “when you step into a courtroom to champion these rights of the accused, you know that you’re championing the rights of everyone in society” (p. 391), while Babcock (1983-84) asserts that “the criminally accused are the representatives of us all” (p. 177). In the remarks that follow, defenders interviewed for this study explain that such considerations are not abstruse or theoretical; they are, rather, particularly salient reasons to do public defense work: Obviously we work for indigent individuals. [But] my focus has never been the indigence of my clients, the fact that they’re poor. It’s been more that the Constitution is such an important document that I think that the government feels that if we just start unraveling it a little bit at the lower social levels, the people up here won’t notice. Sometimes, I compare my job to putting a finger in a dyke. People don’t know that, yeah, they’re doing this now to people you don’t like- child molesters, drug dealers. It’s okay if we tamper with the Constitution in order to get them convicted. But you understand they’re coming for you next. It’s just a matter of time. So I see myself sometimes standing there and I think a lot of people in this office probably do. We’ve got our backs up against the wall trying to keep it from caving in. [10] What I firmly believe, and I think that most defenders believe, is that when it’s easy to trample on the rights of people like that, people with no power, when you can trample on them, everyone else is next. [36] The prosecutor’s attitude is going to be the ends justify the means. And my attitude is that there’s a rule of law. And people have rights. And if you don’t abide by those rights, then everyone is affected. [15] PD: I believe in what I’m doing… There’s other things where we have to have someone doing it and it’s a job I couldn’t do. But this is a job I can do. And I can do it well. And I was blessed with a certain amount of talent and a brain and I can put it to good use. It’s important to me to contribute to society. I am not materialistic. I made my choices in my life and I’m happy with them. MW: In what way would you say you’re contributing to society?

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PD: Most of the people who come through the criminal justice system are the indigent and if the indigent were not represented, then the government would go crazy, because the government would be able to wreak havoc and then none of us would have any rights to do anything. And everyday that I’m here, I’m doing something for me and for you and for everybody else in addition to the individual client that I’m working for. So, I really feel good about what I do. I feel like I really do contribute. [44] DISTRUST FOR GOVERNMENT It should be clear by now that many public defenders articulate a distrust of government prevalent among civil libertarians; they perceive their work as crucial to the preservation of liberty in a democratic society. One attorney, for example, is motivated to do public defense work because of “a healthy skepticism about the power of the State, about law enforcement, the whole criminal justice system.” [4] Another is astounded that a gullible public credulously accepts governmental intrusion into their everyday lives: Most people think that it’s okay to put cameras on street corners. It’s acceptable to stop people on the sidewalk. If you’re not doing anything wrong, hey, where’s the harm? So people think that that’s okay. They wouldn’t mind being stopped and patted down. They don’t have a gun, they don’t drugs. They don’t realize! [10] Others share this cynical view and think of the representation of vulnerable indigents as a way of counteracting what they consider to be the tremendous excesses of State power: We are- it may sound corny but I’ll say it with a straight face because I mean it- we are really the front line against the oppression of individuals by society. And I think that’s the core of what we do, because the people whose rights it’s easiest to take away are indigent, they have no political power, they have no friends, they have no one but us. And when their rights get eroded, yours and mine are next. I feel that every day that I do this work… I believe it as firmly as ever. And I guess when I stop believing it I’ll be done doing this job. But I feel that more strongly than I did when I first started. [36]

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Public Defenders The only way we make it so that Big Brother isn’t watching us and able to stop us at any time is because every once in while some guy gets off because they suppress the evidence he was carrying because they didn’t have a right to stop him in the first place. That’s why. And if you don’t have that, you don’t have a society. Yeah, it’s a little bit of a price to pay, but how much, really? How much of a price is that, really? So, how do I do it? I do it because I have to in my gut. [42] I think it’s giving the government a lot of power to put people in jail. I mean, we are the government. That’s us. And if we empower our representatives to take away someone’s liberty or life- in capital cases- then I think it’s reasonable if someone says, “I don’t want you to do this to me, the government should have to prove it beyond a reasonable doubt.” I don’t have a problem with that. [28]

Some defenders make the more specific contention that without their zealous and partisan advocacy on behalf of the factually guilty, the government will use its power to convict the innocent. As one lawyer puts it, when “there are too many shortcuts, which then start infringing on our clients’ rights, it’s just too easy. And then there’s going to be the guy who isn’t guilty who just gets caught up in this shortcut mess.” [17] Others offer further elaboration: We get criticized in the papers and the media about technicalities, but those are what make our society entirely different from other societies. In [Saddam Hussein’s] Iraq, there’s not quality defense and in China, there’s not quality defense. We, as a society, are proud of the fact that we’re different, and what makes us different is that we have a set of guaranteed legal rights and protections that constrain against the wrongful conviction of the innocent and the only way you can actually achieve that goal is by following those rules. And you have to have defense counsel- not judges, defense counsel- because they’re most likely to point out when things aren’t proper. [41] MW: Sometimes, though, you’re going to have a client that’s not just a kid who didn’t really do anything so bad. He’s going to be a nasty guy. And you’re saying, “Look, you’ve got to play fair, or I’m going get my nasty guy off and set him

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loose back into the community.” And he may do another pretty nasty thing. How do you handle that tension? PD: That is how it should be. That is why we have the system that we do. Better that that guy go free. You’ve heard this before. Better that ten guilty people go free than one innocent person be convicted. Again, you have to universalize it. It’s not a situational thing where it’s okay in some circumstances and not okay on others. It’s just plain not okay. And they’re professionals. They have to behave like professionals. Being a professional, you follow the rules of your job. You do what you’re allowed to do and nothing more. You don’t make that judgment call, that I’m going to interpose my personal judgment and my personal feelings about the situation and conduct myself accordingly. You can’t have that luxury. [10] PD: If you start falling back on it, for somebody who’s guilty, then what happens when somebody is innocent? You protect everyone… but it’s the innocent one that is why we have the system in place. You’d hate to see somebody be convicted of something who sincerely or honestly didn’t commit some crime. MW: Is it good for society if you get those people… where there is [clear] guilt, is it a good thing for society when you get them very good dispositions or acquittals? PD: On the whole, yes. In law school, there was a professor who what he said was, “It’s better to set a hundred guilty people free than to send one innocent man to jail.” MW: We do both in our system. We send innocent people to jail and set guilty people free. PD: Yeah. True. But the basis for the system is you’d rather see a guilty person go free than see an innocent person go to jail. If you are going to err on one side, as a member of society, I’d rather see them err on that innocent person not being incarcerated, not being convicted of something. If the price we have to pay is somebody who’s guilty is also set free, I’d rather err on that side than the other way. [5] One defender even believes that the need to protect innocent people from a reckless and overly powerful government ironically emanates from the misguided support of the very same public for unduly aggressive crime control initiatives:

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Public Defenders It’s based on the “absurd” idea- you’d be amazed how many people don’t believe in this idea anymore- but it’s based on the “absurd” idea that it’s better to have guilty people out in the streets than to have innocent people in jail. I believe in that. I’d rather have guilty people on the streets than innocent people in jail. But, because of all this tough-on-crime nonsense that we’re constantly barraged with, and cop shows, cop movies and all that sort of stuff, people more and moreuntil it’s them- believe that they’d rather see innocent people in jail than guilty people on the street. [29]

TRUE CONSERVATIVES AND TRUE BELIEVERS Kunen’s recollection of the stirring words he heard at the end of his training period at the Public Defender Service of the District of Columbia perhaps best describes the Constitutional motivation. Calling indigent defenders “sentinels on the frontier of freedom,” and averring that he was “ready to report for duty at the frontier,” Kunen (1983) contends that: Defense lawyers are the true conservatives, defenders of the Constitution, of law and order. Without defense lawyers, there’d be no rule of law, no limit at all to what the government did. Governments have demonstrated a tendency to lock people up. You have to draw the line way out there, at the least sympathetic defendant, so that the government doesn’t even come close to taking you. (p. 37) Because of their suspicions of government actors and institutions, their commitment to the rule of law, and their devotion to constitutional mandates, defenders interviewed for this study also described themselves as the “true conservatives” of the criminal justice system. The following attorney, for example, offers thoughts on what a public defender’s office symbolizes in contemporary society: PD: That is, at least in my opinion, the last bastion of an office that respects the Constitution, and wants to see the Constitution as broadly interpreted as possible to benefit most of the citizens. And I find that there are many people who say they like this Constitution, but all they want to do is keep eroding its rights and restricting [its] meaning. In my opinion, limiting the application of the Fourth Amendment, the Fifth Amendment, and the Sixth Amendment… is not what government is supposed to be doing. It’s what the government

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is trying to do- gain all the power back it gave the people 200 years ago…. I have select quotes from Thomas Jefferson- that we set up this government this way knowing that the government is going to spend the next 200 years trying to get all of its power back. And that’s what it’s been doing. And I think we’re here to say “No.” Enough is enough. MW: That sounds like a very libertarian sentiment, almost. PD: People say I’m a liberal. I don’t think so. I think I’m a very strict conservative. I approach the Constitution that it means what it says and you shouldn’t be taking away these rights from the people. [35] Just this sort of opposition to government interference in the affairs of its citizenry was something that animated a self-defined political conservative at one office, who pointed out that “when you think about it, a real conservative would do this job, because he doesn’t like all this government intrusion in people’s lives. Shaking them down, doing all this other crap.” [23] To a number of public defenders then, the Constitution and the American legal tradition represent time-honored and even patriotic ideals that provide powerful motivations to do what they do. Notwithstanding accusations that the defense of accused criminals contravenes both the welfare of the public and the integrity of the law, they think they are doing nothing less than defending the rule of law itself; as McIntyre (1987) points out, many defenders “believe that they come not to destroy the law but to fulfill it” (p. 142). These are not, moreover, rarefied abstractions unconnected with real-world public defense work. For quite a few of the attorneys interviewed here, in fact, they provide particularly compelling answers to questions that ask why, if someone must represent the indigent, that someone must be you: Because I’ve been here and I’ve seen what I’ve seen, I just can’t stop doing [public defense work]. The system is going in the wrong direction, from my perspective, and I really don’t perceive myself as a liberal or a radical. I see the government trying to take all the power back. It’s supposed to be a government of the people, by the people, and for the people, and it’s becoming more of a government by the government and for the government. That’s how I perceive it. [35]

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Public Defenders Many of my friends make money, but they’re not nearly as excited all these years later about their job as I am. I think I’m doing important work. Even when you don’t succeed in winning the case, I think [we are] holding the prosecutor’s office and the judges to a high standard by forcing them to have reasons for their motions and objections. We point out every error, and it benefits our client because they get the fair trial. We have a part in the criminal justice system and I feel I’ve contributed to it. [41]

Last is the defender who ponders the gradual evolution in his motivation to represent the indigent. Defending the Constitution was not very meaningful for him as a new attorney. With a few years of experience as a public defender, however, things have changed to the point where he perceives police officers and prosecutors as profound threats to our basic civil liberties: MW: Do you see yourself here in five years? PD: [Pause] If I’m not here, I don’t see what else I would do. It’s a hard question to answer. MW: Would you be a career defender? PD: If I didn’t do defense work, I don’t know what else I would do. I guess that’s the only way I can answer it. I did not anticipate this happening to me. I didn’t anticipate being here as long as I’ve been here. I didn’t anticipate feeling the way I feel about my job. And now that I do feel the way I do about it, I’ve been asking myself that question too. Because it’s such an important job, and I don’t know if I always feel as though I’m up to doing this for the rest of my life. Am I up for this? In time, my respect for the people I work with has only grown. It’s become huge. The same people who, when I started here, they were the violent felony attorneys, they were maybe a little strange, a little hard to understand. And now I see. Now I understand. It’s a very new thought. When I was at the prosecutor’s office [interning], they would refer to those people as the “true believers” with a very cutting edge to it. And I remember feeling sort of that way when I was there too. When I was [starting], I thought, “They’re really nuts up there. They’re maniacs. They’re so committed to this!” That sort of thing. And now I’m here, and I’m like, “Oh! Now I see!” And I don’t know. I don’t know if I’m up for that. I don’t know if I’m up for the pain.

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MW: Are you a true believer? PD: I think I must have become one. In terms of the Constitution. That’s really where it centered itself. It’s never for me become an issue with the poor…. It just so happens that they’re the first victims of the war against the Constitution. They’re the first ones who they go after. [10] CONCLUSION Many public defenders perceive a society in which basic constitutional protections are threatened by a powerful and invasive government characterized by criminal justice agencies that as a matter of course go beyond legal restrictions in the apprehension and prosecution of suspected criminals. Indeed, these lawyers view themselves as society’s last line of defense against this sort of excess, even as their fellow citizens fail to recognize the peril. Clearly, the sentiments in this section are not those of “double agent” defenders more interested in about getting along smoothly with prosecutors and judges than they are committed to giving effect to the rights of their clients.

_________________________ ENDNOTES 1 Babcock here references Shakespeare’s King Henry V, Act IV, Section III: “We few, we happy few, we band of brothers. For he to-day that sheds his blood with me shall be my brother.” 2 To be sure, Ogletree (1993) regards these concerns more as justifications that rationalize indigent defense work than motivations to actually do indigent defense work. Ogletree’s characterization, however, might be somewhat indiscriminate and can, in fact, be applied to almost any motivation that explains why indigent defenders do what they do. Moreover, even if one accepts Ogletree’s more cautious approach, as he himself concedes, “the distinction between motivation and justification cannot always be clearly drawn. Indeed a justification may also serve as an effective motivation” (p. 1245). Finally, as this chapter will show, there are in fact public defenders who are very, very serious about Constitutional directives and for these attorneys, it is no stretch whatsoever to say that such considerations provide rather compelling reasons to do the job they do. 3 In terms of strategy, of course, public defenders must frequently consider this issue.

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CHAPTER 7

Altruistic Motivations

The American system of criminal adjudication would not work without public defenders to perform their legally and structurally prescribed roles. Still, many of these attorneys feel that they fulfill important interpersonal functions that are larger than their formal tasks or even the specific facts of their cases. It is clear, in other words, that public defenders have a strong desire to help the vulnerable, to establish meaningful relationships with clients, and above all, to have an effect on their lives by treating them with consideration and respect. Bellows (1988) articulated these ideas when he reflected upon his achievements when leaving the District of Columbia Public Defender Service: I have represented a lot of people, hundreds and hundreds and hundreds of them. And these people were not calm when I knew them. They were desperate, in extremis, often hysterical, though often numb. If you really want to know what it is like to be needed, to be needed passionately, be a public defender. My clients would not be stars in any solar system. But they were stars in their own families; they were stars on the block. They were the most important people they knew. And either by a quirk of fate or an act of faith, their lives were in my hands… Before I came to the Public Defender Service… I rarely had that sense of individual impact; I rarely had that sense that there was some one person out there who was desperately depending upon me. For whom I really, really counted. And that is why I came to PDS. To count. To make a difference in individual lives. And maybe, if I was lucky, to be able to say when I was through that I saved some lives. (p. 98) PUBLIC DEFENSE AS A HELPING PROFESSION Like Bellows, many of the public defenders interviewed for this study aspire to help those who need help, and their clients surely qualify in this regard. Quite a few of these attorneys, in fact, use exactly this terminology to describe why they do what they do. One, for instance, 117

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asserts that “I guess I like fighting for the underdog. I know that’s cliché-ish, but I like helping people.” [8] Another unfavorably compares prosecution to public defense work and concludes that “I’d rather be on the other side, where I’m helping the person.” [34] Similar thoughts are conveyed by the lawyers that follow: MW: What else do you like about the work? PD: There’s a lot of good things about it. When you do a good job for a client when you have a client who really needs help. Those are good things. [27] There are a great many people who get into this sort of work… who might be, in a different setting, referred to as bleeding heart liberals. And…, that can’t be removed from your job. And yes, so you want to help people. That’s one of the things that keeps you going. I think if I lost my faith in people, if I felt that I wasn’t helping anybody, I wouldn’t want to do the job. That gets me there. [40] Some attorneys even volunteered that as a motivation to do public defense work, the opportunity to help clients surpasses the intellectual appeal of criminal practice, the devotion to the Constitution, and the sense that there is something unfair about the criminal justice system: My desire to help people, clients, got me in it and keeps me here. It’s not my love of the law. It’s not the Constitution. [1] But it’s not just this pure intellectual defending the Constitution and all that. Because I do it for clients. It’s indigent clients. It’s good to help people get out of a jam if you can. [37] Am I Alan Dershowitz? No, I’m not. I’m not trying to cure the system by being there. But I am trying to help the people out who find themselves in those dilemmas. [31] The desire to help is especially urgent because criminal defendants are exceptionally needy. Unpopular, facing criminal accusation and perhaps incarceration, and having to confront the immense resources of the State, they have only their attorneys to help them: People who have been in the system numerous times- I think they want to be treated like a person. Everyone else looks at

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them differently. Judges look at them, prosecutors look at them. They have nobody. I think they just want someone to go to bat for them. [39] As such, Babcock (1983-84) notes that defenders are motivated by “humanitarian” impulses, since “the criminally accused are men and women in great need, and it is part of one’s duty to one’s fellow creatures to come to their aid” (p. 178). One of the defenders interviewed for this study likewise points out that “I don’t think anyone can fully appreciate how vulnerable a person is when they’re charged with a crime, and how they look to you to do the right thing for them.” [34] Others put it a bit differently, including the lawyer who maintains of indigent clients that “I’m the one person in the world that they can trust” [2] and the attorney who says that one of the best things about public defense work is “offering hope to hopeless people [even though] I know it sounds schmaltzy.” [14] Another defender describes a client facing a likely conviction at trial and declares that “I’ll fight like hell to keep him from getting there. Because he has no one else but me.” [36] This attorney, in fact, couches such sentiments in terms of “protecting people who need protection,” an evocative idea echoed by the lawyer who cares for clients as parents would their children: A lot of times, I relate to my clients as my children…It is my job to represent them. It is my hope to protect them. Or to enrich their lives. Or to give them the tools to modify their behavior. … I can be their voice in court. I can try to be what they need. [45] The altruistic motivation, moreover, is unrelated to either the truth or the gravity of a criminal accusation; helping clients is important precisely because defendants are often guilty as charged, sometimes of abhorrent crimes. As one attorney says, “I feel bad for my client as a person, and feel some compassion even if what they’ve done is horrific.” [9] Defendants facing such a situation, after all, are especially vulnerable and thus that much more in need of their lawyer’s help. The following defenders offer particularly interesting insights on this issue: PD: Well. I’ll tell you- and I mean this in all seriousness [Laughs]- none of them are bad guys once I sit down and talk to them. The first thing we get when we pick up a case is the [criminal complaint] and papers. And I will inevitably read some of them and think to myself, “What a jerk. What an idiot

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Public Defenders this guy is. How am I going to sit there and listen to this nonsense?” And every time I sit down with them, within a couple of minutes, they’re no longer the bad guy. They’re just a guy. MW: Why is that? PD: I don’t know! MW: How does that transformation take place? PD: I don’t know. It just happens. No matter how negative my first impression… MW: How do you keep it out of your head? PD: It just isn’t there. It’s like magic. And it’s wonderful. I have a [serious case] now, and it’s pretty bad. It’s pretty bad. The accusations are pretty bad, and the evidence is overwhelming that my guy did it. He’s got a bad record, for basically the same sort of behavior, over and over again. And I’m thinking, “Oh!” Same reaction. “How am I going to sit with this guy? This is ugly. I’m a little nervous about meeting him. I think he’s a violent person.” I’ve never really had trouble with my clients personally, in terms of feeling afraidthat doesn’t happen. But with this guy, I was a little concerned. He walked in. About a minute later, he was just a guy with a real, real serious problem, the most serious problem any of us could ever stand here and face. And it was okay. It’s a wonderful thing. They just become human beings with really difficult problems. And really hard choices to make. And my desire then becomes to help them get through it as much as I can. [10] PD: The fact that someone is socially disapproved and may in fact have earned that doesn’t change the fact that that person desperately needs help. And so I’m happy, I enjoy- whatever word you want to use- being the person who’s trying to help. And I guess it’s because this person is socially disapproved or charged with horrible, socially disapproved acts, is why he’s in the situation he is. So that fact really doesn’t add or subtract from the fact that I enjoy being in that situation. That is part of the situation that puts him in a place where he needs some help. So, the fact that society at large, and other people that I meet and my friends and others on the street don’t like what a person did, or don’t like a person, really doesn’t play into much in the fact that I still enjoy and get a great deal of satisfaction from being the person that that person has to help him.

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MW: But there’s got to be times when you don’t like what this person has been accused of doing. PD: Completely different thing. Many clients have in fact done things that are horrible. It goes way beyond, “I don’t approve of this.” It would make you sick if it happened to you or your family or anything like that. Horrible sex crimes with children. Murder. Things like that. Really awful things. None of those change the fact, though, that it’s somebody, some guy, a human being that needs some help. And one of the things I enjoy is trying to help somebody. The fact that it is a person who did in fact do something horrible doesn’t mean he needs help less. In fact, it probably means he needs it more… I guess that fact is one of the things that puts me in the job. It isn’t really something that needs to be gotten around. That isn’t to say that I enjoy looking at pictures of dead little kids, or cross-examining four-year-olds on the stand about, well, “Was it standing up or was it hanging down?” Things like that you’ve got to do. But none of that changes the fact that I’ve got some guy who needs some help really bad. And it falls to me to try and do that. [43] That indigent clients are by definition impoverished, underprivileged or in some way socially disadvantaged also contributes to their vulnerability. The desire to help, therefore, is often accompanied by the sense that an oppressive social structure and discriminatory criminal justice system are in many ways responsible for creating a situation in which poor, largely minority defendants require a defense attorney’s services. Because this version of the altruistic motivation takes on something of a political coloring for many public defenders, their perspectives on the matter will be given a fuller treatment in the chapters that follow. RECOGNIZING CLIENTS’ HUMANITY As some of the comments above make clear, the criminal defendant’s vulnerabilities serve to demonstrate the universality of the human condition by bringing to life their clients’ fears and suffering. David Feige (2001), trial chief for the Bronx Defenders Service, develops further the notion of empathy for vulnerable clients by noting that while “prosecutors and cops and judges and politicians and friends and family all rally around” the victim, it is the public defender’s job to look after the defendant:

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Ogletree (1993), in this regard, argues that motivated and effective defenders should be “empathetic,” something that involves the ability to recognize a client’s “humanity” and attend to “the background that may have led him to commit crimes, and the multiple needs that transcend his current case” (p. 1274). And Wishman (1981) suggests that once this connection is made, it is easy to see that defendants really are not all that objectionable; after taking the time to learn about his clients and their backgrounds, he concluded, “not surprisingly, the more I knew about them, the less foreign and monstrous they seemed” (pp. 62-63). Along the same lines, one of the lawyers interviewed here emphasized that “[it’s] a person to you that you represent. So it’s not a monster. It’s not a green-eyed monster.” [19] As in the literature, then, many of the public defenders taking part in this study make it clear that though their clients may be criminals, they too are human beings worthy of compassion and respect; indeed, as subsequent chapters illustrate, these attorneys are particularly critical of police, prosecutors and judges who cannot come to terms with this. One lawyer argues, for instance, that “I don’t want to say that I take in stray dogs- which, of course, I do- because my clients aren’t stray dogs. They’re people who should have the same level of dignity as everyone else, and they don’t.” [45] Other examples include the defender who maintains that even if a client has committed a crime, “to me, you’re always dealing with a person, a human being, so I don’t know how you close your eyes to that” [12] and the one who recalled that “the longer I was in this office, the more I grew to recognize that these are people, and whether they’re messed up people or whatever, I still want to talk to them.” [38] Bear in mind as well the comments that follow:

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I think that people who are drawn to defense work… are in a position where they can see the people aren’t fundamentally different from each other and they can see the humanity, they can humanize their clients. [4] I don’t have a strong visceral opposition to the person, relating to the person. Because the… thing is, I’m dealing with each client… as an individual who’s got a variety of issues, a variety of problems, who is a human being and has a right to be treated as a human being. [15] MW: Even if you recognize that it’s your job to focus on legal issues, and you want to help people, how can you just ignore what they’ve done? PD: Because I can. I am able to say that it’s a really yucky thing to do, but I can look into your eyes and say you’re a human being and you should be treated as a human being. It’s a special thing that I have, that defense attorneys have. [9] One attorney even considers public defense work a way to confer selfworth to the young African-American men who comprise a large percentage of the indigent population. Although this lawyer views society in general as mostly apathetic to their fate, the hope is that “if they meet somebody in the system who gives a damn then that would affect the things they’re doing with their life and how they see their lives.” [1] This defender goes on to specify how these clients might be granted the dignity they deserve: PD: The reasons people go into this job are different. But my personal ideal is helping people. It could be an “I’m-going-tosave-young-black-males” complex I have. MW: Specifically, what does that mean? PD: To go visit them in jail. To answer your phone. To make appointments and let them come into your office and talk to you. To make a phone call to family members or go to their house and say, “What’s going on?” To smile. To pat them on the shoulder and say, “Hang in there.” To be straight with them. To really explain things to them and let them know what the answers are. [1] The attorneys that follow emphasize that ours is a diverse society, made up of people who abide by the law and people who break the law;

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together, we are all part of a larger communal enterprise. Criminals, therefore, are fellow citizens, neighbors, friends and relatives, and they as much as anyone deserve someone to stand for them: We are these people. They are us and we are them. I’ve represented people in every social strata and economic strata. Drug dealers. Lawyers. No difference. There’s no difference whatsoever. Maybe some had better manners than the others… Something in the brain makes a person decide, “I see a situation I can take advantage of and I want to do it.” It makes no difference where we come from or what advantages we’ve had. It’s just a question of crossing that line. And you can isolate yourself and say, “these people,” but we are “these people.” There’s no difference. I think it’s much easier to call them “these people” and not deal with them… We’re all a community and we will remain a community and it’s inconsistent to say that there’s this group who threatens us, because that group is all integrated with the rest of us. You can’t distance yourself from these people because they’re part of the community and in a smaller sense, they’re people we all know and love. You can’t be an isolationist in this society. [14] The reality is that we live in a society, as in all societies, where there is going to be a fringe element, a criminal fringe element. And what is that about? Who are these people? They have a place. Even though they are outliers with respect to following the law, they are part of the society, they’re not a leper colony, they live amongst us. We live amongst them. And the system is set up to deal with them, and I’ve chosen happily, readily, and without reservation to be at that nexus where they’re called into court to answer charges. That’s where society and the bad actor meet… So even though they live outside the law, they’re within society. [15] The ability to give meaning to their clients’ humanity, finally, is something a number of defenders believe they would be less able to do as prosecutors; some offenses lack direct victims and with others, defenders see the lawyer’s connection to the victim as less intimate: Your job is way more personal [than a prosecutor’s], because your job is another human being. And sure, their job might [have] a complainant and… I am not going to discount the fact

Altruistic Motivations that in a sexual abuse case or in a violent attack they have victims. But certainly where the victim is the [State] in a drug case, it’s hard to identify with that victim the way that we have a human being- a young mother with five children who [was] maybe [involved with] drugs for money because her kids are hungry. That’s different. [34] PD: You’re dealing with complainants and victims and things on the prosecutorial side, but it’s nothing like having a client. It’s much more rewarding, I think. MW: How so? PD: Well, it’s not this amorphous “people.” I don’t know. To me, that’s a bit meaningless. But not on this side, it’s not. MW: It’s the personal interaction? PD: Yeah. Personal contact. 80% of the time, they never have contact with the victim, is my guess. Or, if they do, it’s very briefly over the phone. And they can resolve the cases the way they want to resolve them. So, it’s not the case with me. I’ve got to talk with people, work with them, understand where they’re coming from, understand what happened. [23] By the time you get to court, by the time I enter the picture, the victim… whatever has happened to him, if anything, has happened. It’s done. But my client, nothing’s happened yet. It’s happening as you see it and it will happen in the future. So, no matter what I do or how I feel about the victim, they’re okay now. It’s not going to get worse for them. If they were assaulted, okay, they were assaulted. It’s over. Now, I have to deal with this guy’s dilemma. So, that’s another part of it. That’s why prosecutors, I think, don’t get as involved in it as we do. Because they find things at their end of it is done. And they just try to go after some other guy. Where my thing is, I have a client. He doesn’t have clients. And I have to worry about this guy. [46] MW: In terms of this component of your work that’s very important to you- helping people- do you think that you would get satisfaction by helping, say, victims or complainants or families as a prosecutor? PD: Probably. I think it’s less immediate for a prosecutor, because the help you give is a little less tangible. The criminal justice system basically decides what’s happened in the past

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Public Defenders and what’s going to happen in the future to a defendant. So as far as victims, families, witnesses, things like that, it really doesn’t decide what’s going to happen in their future. Now, I’m sure it’s important to have closure for victims in a case. If there is someone in their family dead, it’s important to them that someone has paid some price for that, that their relative, friend, whatever, their life not be ended for naught. But really nothing different is going to happen for them. Their future still goes on without whoever’s not there. So you’re doing a much less tangible thing. Whereas on this side of the fence, it’s real, it’s tangible, whatever. This guy gets to go out and get married and have kids and decide what happens to his life. Or this guy gets to wear gray for the rest of his life, and the only time he gets to see his wife is in the prison trailer once every few months and that’s it. That’s a real big, tangible, immediate difference. [43]

MAKING A DIFFERENCE FOR THOSE IN NEED The altruistic motivation, then, involves more than just providing support to others, weak and vulnerable though they may be. Many defenders also have a functional objective in mind, and the recognition that their clients are human beings is the touchstone; these lawyers also want somehow to encourage clients to affirmatively change their lives in some constructive fashion. As one of the Cook County public defenders interviewed by McIntyre (1987) reasoned: There is in every human being a soul you can reach. [Pause] Now I use language like this hesitantly, you know, people usually look at you like you’re crazy when you talk like this. But if you are willing to take the risk and open up your heart and reach into their hearts, you will reach it. (p. 168) In this regard, Bellows’ (1988) assertion that defenders value the opportunity “to count,” to “save some lives,” and “to make a difference” has particular resonance. Along the same lines, Smith (1993) uses an old television program about a “sensitive new age public defender” to put criminal defense work in context; she approvingly quotes “Rosie O’Neill,” the protagonist of this show, who confidently declares: “I know I make a difference” (p. 1). This is a sentiment repeated by many of the defenders interviewed for this study, one of whom asserts that an especially rewarding aspect of defense work is “doing something for clients that’s really going to make a difference in their life.” [44] Another insists that “in the end,

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I’m convinced that I’m making a difference,” [34] while according to a third, “I always felt that being a criminal lawyer, working with clients, in some way maybe over the course of the years that I’ve at least changed some lives. And certainly for the better.” [2] Consider as well the remarks of these defenders: I came here wanting to be a good public defender and to see what I could do to make a difference in the lives of my clients. And, I just felt a sense of satisfaction that I never thought I would feel. I talk to a lot of my classmates and a lot of them are really frustrated working at firms, sitting in a back room writing memos of law and not seeing the light of day. Some doing estate planning or real estate closing after real estate closing. And I just said, “I’m the luckiest person on this planet getting to do what I do.” [35] It feels important. I feel like I make a difference. I can’t think of many other jobs where I would feel that way, outside of health care, doctors, heart surgery or anything like that. But as far as this profession goes- or any other white-collar profession- it’s a challenge and there’s a lot of impact on my clients’ lives. I get a lot of satisfaction out of that. [46] On a deeper level, I get a lot of personal satisfaction in affecting people in ways that I know they wouldn’t have [been affected] if I wasn’t there. I get a lot of satisfaction knowing that the system works for them because of something I’ve done. [14] I think that I’ve done something in my life that I can look back and say, “Hey man, I’ve made a difference.” Not just for my kids. [The corporate attorneys], how did they make a difference in this world? Other than to their pocket? Doing this job is one of the few opportunities. Teachers influence lives. Lawyers, if you do this kind of work- public interest lawyers- influence lives. [You do] stuff that people will remember for the rest of their lives. [33] It is apparent from the excerpts above that these defenders invest much meaning in “making a difference” for a client. It is one thing, after all, to say that a public defender is driven to help others. It is quite another to insist that you “get a lot of satisfaction” from this or in doing so, you

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are “the luckiest person on the planet.” But the question arises: what exactly do defenders mean when they say that it is particularly satisfying to “make a difference in someone’s life?” One answer is that making a difference for clients involves providing quality legal assistance; it is gratifying when defenders can make a client’s legal situation intelligible for them and ensure that they enjoy a variety of significant constitutional protections: I like empowering people who don’t know what their rights are. Because that’s what we, as attorneys, do. We give their choices that they don’t know exist. We try to help them understand the situation that they’re in. Or, we try to help them understand the law, and why society says you shouldn’t do these things. But, a lot of people just don’t understand. They’re ignorant. [8] All I want to do is try to provide the best quality legal defense for people who can’t afford to buy a Johnnie Cochran or a big expensive lawyer. I want to try to provide as close to that type of representation for people who don’t have a pot to piss in, if you will, as some rich person. [29] There are rules and regulations that the average person doesn’t know. And I mean, the average educated person doesn’t know. [There are] plenty of people I know who themselves or family members come through the system one way or the other, and it’s the most frightening thing in the world. It’s so foreign to them, they don’t know what to do. Someone has to help them navigate through the system and I’m glad I can do that. [44] Making a difference may also mean securing acquittals in order to save clients from the trauma of imprisonment and thereby afford them another chance to make things right for themselves and their families. The first of the defenders that follow, for example, recalls one particular client who was exonerated after trial: [One of the best things about this job is] bridging gaps that would otherwise be left unattended. When that verdict came in, I remember turning to that kid and saying to him, “You’ve just been given another chance. Make sure you use it.” These are terrific moments. I made an impact. I’ve interacted in a way that had an impact on a person’s life. These are terrific moments. [14]

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MW: What are some of the best days at you had on this job? PD: Best days? When I win. [Laughs] When I win a trial! MW: Why is that? PD: Because you just feel like you really saved someone. And you get really emotional in these cases because you get close to your clients. You get close to the clients, you know their families. Everyone is sitting out there and you’re thinking, “God, I hope I did everything the right way.” And if it works out and you walk out of there, and he’s walking with you, that’s the greatest feeling. That’s a really good feeling. [25] In addition to the fulfillment defenders obtain from affording quality legal representation and securing acquittals, the sections that follow indicate that for many, the altruistic desire to help their clients may also take on a less conventional meaning. PUBLIC DEFENDERS AS SOCIAL WORKERS Many public defenders endeavor to aid clients by supplementing the formal aspects of criminal defense with the personal attention customarily found in more traditional helping professions. A number of the attorneys interviewed for this study emphasize that indigent defense is as much about “social work” as it is about legal representation: I don’t view my job as just getting people out of jail. There are so many different hats that you wear. You’re a social worker, too. And I view that as part of my job because you’re advocating for an individual, but advocating can be many different things. Does it make my job harder? Yes. But I don’t think I would be representing them fairly or fully if I didn’t do it that way. [1] I think we are a little bit of everything. I think we’re social workers. I think we’re psychiatrists and psychologists and lawyers. Doctors in the sense that you’re trying to fix somebody that’s broken. I think we’re a little bit of everything. [2] The sort of assistance these lawyers describe may not be strictly legal in nature, nor might it be the most widely recognized component of their work. Still, representing the indigent involves many things and the opportunity to help clients by providing “social work” assistance is a part of the job that spurs many defenders to do the work they do.

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Providing Needed Social Services Public defenders can fulfill their social work responsibility through the social services that may be part of a defendant’s case disposition. One attorney, for example, is particularly pleased to be able to educate clients by making them aware that, as an alternative to imprisonment, they might elect to participate in programs designed to provide direction to their lives or address a variety of personal afflictions. Such services often involve treatment for alcohol or drug addiction, and in this defender’s view, are doubly beneficial; not only might clients find relief from their demons, but if such programs are successful, they will be more likely to steer clear of criminal activity: They don’t know… the different choices they have as far as their cases. They always figure, “Oh, I’ll just go to jail.” Or, “I know I’m going to go to prison.” But you tell them that there are alternatives to prison, like there are drug programs that may accept you, because you are only [committing crimes] because you have a drug habit, and if you get rid of the habit you might be a productive member of society. There are other ways to correct this behavior. If you teach them that there are alternatives to crimes, other than prison, if you teach them to look at this behavior, and take away this particular drug dependency or take away this alcohol dependency, or if you get a job instead of stealing stuff from stores and selling it on the street, you know, you wouldn’t be going to jail every three or four months, you wouldn’t be going to prison. If you show them that there are alternatives, it empowers them to change their lives and to do better. Some people honestly don’t believe that there are alternatives out there and that they have choices. And as attorneys, we empower them, we show them that they have choices to make. [8] After arranging these services for criminal defendants, other defenders derive a great deal of satisfaction when their clients successfully complete such programs and create a better future for themselves: MW: What would you say are the best days you’ve had on this job? PD: This job involves a lot more than just being a defense attorney. We have a lot of services we offer. We can help clients as far as getting them into drug programs, getting them into mental health programs that they may need. You know, we really try to help people. Our clients. It’s a nice thing when

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you do the right thing and it works. You get somebody in a drug program, and a year later, they’re drug-free… It’s a wonderful thing to see somebody who, the day you meet them, they’re so incredibly drug-addicted and so badly off, and you get them into a drug program and a year later, they’re straight, their clean. It’s beautiful. It’s wonderful. I can really help somebody and touch their lives. [2] I had a woman, who was addicted and I got her in a program, and when you saw her later, she had a job, she looked great, she turned her life around. She came around. And you feel great. The program was the best thing in her life. A lot of crimes do consist of that. Given the opportunity, they can turn their lives around. Of course, there are others. But there’s a good number of people who can change their route. [22] MW: What generally is a good day [at this job]? PD: There were a couple of people I represented that I thought were gone, in terms of kicking their drug habit, mostly. And working out problems with their family that would land them in jail. And I’ve seen a couple of them now, with other people coming to court, and they’ve worked things out. And they’ve talked to me about it, come in and seen me about it, thanking me for my help, and telling me what they’re doing. And it’s phenomenal. It’s great. It’s a great feeling. It comes in spurts, usually. For me, anyways. I’ll get like three or four people that will come up to me in a week. I’ll see them in the courthouse. I’ll be like, “Hey, what are you doing here?” and they’ll come up and start talking to me. Things in their lives are going great, you know? They landed a good job, it’s paying them well. They’re able to support their kids now, they’re seeing their kids. They’ve beaten drugs, hopefully forever. So, those are great days. [23] Talking, Listening and Providing Meaningful Relationships Helping clients change their lives by participating in treatment programs is only one way public defenders act as social workers. In a broader sense, several attorneys maintain that because indigent defendants have so many personal problems, much of their work is really about showing interest in clients, talking with them and listening to what they have to say:

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Sometimes, public defenders can make clients see that their criminal behavior is counterproductive: Some of our clients are [Pause] difficult. But even they are people. And so, if you can break down the barriers and figure out what their motivation is and get under their skin, it makes it worthwhile. [18] I guess the goal in some way is to get the client to recognize, even if the trial is going along, and you look at it and you say, “Well, you’re going to be acquitted of this thing because I see they can’t prove that,” or “I’m going to get this suppressed, and you’re going to walk out.” But at the same time, on that parallel line, you’re trying to have some impact on that client so that it doesn’t happen again, so that he’s not charged again. Even if nobody in the court system realizes you’re doing that… Because you’re trying to subtly convey that, “You can keep doing this but here’s the end result,” before it’s too late. And again, nobody in the system knows you’re doing that. But that’s the only way a defense attorney can have any impact on changing somebody. [19] I think sometimes in your function as legal counsel, that you can sometimes influence a person who might be an evil wrongdoer to see the error of their ways, as it were, and voluntarily do the right thing by themselves… Sometimes in the course of dealing with someone who has done wrong, [you can] get them to understand, perhaps, why what they did was wrong, or what they could do to become a better person, a whole person, and thereby to bring themselves up to a more acceptable standing by societal norms. [12]

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Other times, of course, this is not possible. Either way, this seems less important to defenders than establishing meaningful relationships with people who are more accustomed to being treated with indifference or disdain. As Kunen (1982) notes with regard to a juvenile client: “I viewed my representation of him as an end in itself. He would have a relationship with an adult who was honest with him, and with whom he could be honest. I figured that experience had some intrinsic value” (p. 75). Interacting with indigent clients, talking with them, and listening to what they have to say is seen as something that might be positive for individual defendants, regardless of the specific outcome of a case: PD: This position opened up and I got in and it allows me to help people. I don’t shape them. I would never say that. If you think you are, I think you’re fooling yourself. Because a lot of times, they come back. You think you shaped them and they’re right back in. But maybe help them see what’s going on in their life or, what they’re doing. Or just being there, a guy to listen to them, talk to them. That’s a lot of what it is. When a lot of them come in and talk to me, they’re relieved. I have that happen so many times. “Why don’t you just come in?” They come in and talk to me. MW: Why are they relieved? PD: Because no one listens to them. That’s what I think. And that’s what I’m here for. Just to listen to people. Because they’ll say, “Yeah, I did this. But this is what’s going on.” And I just listen. Let them give their explanation. It may be right on. It may be completely twisted. I have no idea. And if it’s completely twisted, you can maybe say, “Do you see this is a problem? Or do you see this is a problem?” And they may say, “Yeah, you’re right. Yeah, you’re right.” Or, “No, I don’t.” And then they trust me more. Because I’ll listen to them. I may not agree with them, but I’ll listen to them. MW: So, really, you’re part lawyer, and part psychologist or social worker. PD: Yes! Absolutely! Yes! Yes! Because they’ll say, “You don’t know what it’s like.” And I’ll say, “You’re absolutely right I don’t. So tell me what it’s like. You know, I’m not claiming to know what it’s like to live where you live. Or to come up from where you’ve come through. So tell me what it’s like. What did you go through there? Why did this happen?” And you can see why people reacted. And you can start working with them. “All right. This is what we can do.”

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Public Defenders It’s good… I’m not here to convert people. I’m just here to listen to them and help them out. And if they ask me, I’ll talk to them about it. But that’s not my deal here. I’m just here to listen to them and talk to them. [23] I have the opportunity to develop a relationship with an individual who is sort of a pariah. And I have the opportunity to bring some humanity to the experience for the defendant. So even with someone who is a vicious defendant, who I may get along with great, our relationship is not adversarial. It’s not adversarial. I’m there to help them, and they realize I’m there to help them, and we sort of relate. And maybe on some level, I’m making a connection with someone who otherwise wouldn’t have a connection. Who realizes that maybe it is possible to have a good relationship, albeit a professional relationship, with someone. To show them that someone does care. To show them that someone is willing to fight for them. That they’re not just some poor person who’s had a bunch of shitty luck. There’s something gratifying in that. [15]

Coming full circle, in addition to providing a fair amount of counseling, talking with and listening to a defendant may present a valuable opportunity for a defender to introduce the possibility of participating in a program appropriate to the client’s needs: PD: We have more of a, you know, service-type mind. Trying to do things for people. Help people. We have a need to help people. To work with people. MW: How do you go about doing that by doing this job? PD: This is a problem-solving job. Generally, the case is only one part of the problem. See, if you’re really into these people, you want to ask them, what’s the story? “You got arrested five times this year. For petty larceny or some stupid thing. Or you got five drug cases, you know. What’s happening with your life? What happened? Your whole life, nothing. This year, five cases. What’s going on?” If you don’t know that, I don’t know how you can say [you’re doing your job]. Say you enter his case, what can you do for him? Nothing. He’ll be back next week, if you don’t get to the underlying problem… “Lost my job, broke up with my wife. Then I started taking drugs and going drinking.” Many things they say. You want to address that problem. [I’ll ask them], “Do you want to address that problem? Are you ready to address that problem? Because if

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you are, I can help you. Forget the case. The case is going to be over next week. What can I do for you, so that this doesn’t happen?” Sometimes you get guys into a drug program. And if you can do it, you’d be surprised how many people you can help. [33] What is more, when a defender performs both legal and social work for a client, it may even be seen as having large-scale and longterm value. Babcock (1983-84), for example, proposes that public defense work might have a spiraling effect that prompts a healing process that could more smoothly integrate both the individual defendant and his entire community into mainstream society: Those accused of crime, as the most visible representatives of the disadvantaged underclass in America, will actually be helped by having a defender, notwithstanding the outcome of their cases. Being treated as a real person in our society… and accorded the full panoply of rights and the measure of concern afforded by a lawyer can promote rehabilitation. Because the accused comes from a community, the beneficial effect of giving him his due will spread to his friends and relatives, decreasing their anger and alienation. (p. 178) A few of the public defenders interviewed here shared the hope that somehow, very gradually, they are making a difference not just for their individual client, but also for society in general. One lawyer, for instance, says, “I do make a difference for every single client that I touch, and if I work hard enough, I can make a big enough impact one by one.” [9] Consider as well the sentiments of these defenders: You’re educating some of your clients and funneling them into services, and trying to make a difference. And there’s a difference in lawyers, I think, depending on whether they’re trying to fix their client or they’re just trying to get their cases done, you know what I mean? If you look at a client and you’re trying to resolve their life problems so that he doesn’t get into the system again, you can have an impact on what’s happening in the criminal justice system if you can try to get to the point where somebody’s not going to get into the system again. [19]

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Public Defenders If one person has perceived that they have been helped, that the system has worked for them and that you have helped it work for them…, maybe that little bit, if it multiples, will make this whole system work a lot better. Maybe it will be helpful in the long run. [10]

When public defenders do social work, then, they act on the conviction that like everyone else, their clients are people with troubles and needs, they have the capacity for self-reflection and the potential for personal transformation, and their torment can be assuaged by a defender’s intervention. The next section identifies what may be at the root of these beliefs for a number of defenders. THE ROLE OF RELIGION A remarkable indication of just how much passion there may be in the desire to help others is the frequent use of religious metaphors by public defenders to describe what they do. To illustrate, Babcock (1984-85) says that underlying the daily frustrations of indigent defense is “the sense of doing the Lord’s work” (p. 314), Kunen (1983) speaks of “the saintly feeling of standing with the reviled and the friendless” (p. 14) and Bellows (1988) notes that although he “was representing rapists and robbers, many of whom were obviously guilty, and many of whom would certainly pillage again upon release,” he worked “feverishly to free these guys, even acting sometimes like this was not a job, but a holy mission” (p. 71). Wishman (1981), perhaps, goes the furthest when he muses that even if the belief in the justness of a case is not possible, “the role of rescuing anyone- even a guilty client- could be very gratifying. A client’s life, or years of it, could literally depend on his lawyer’s efforts, and those efforts could stir up the same messianic illusions in the lawyer’s head whether the client was noble or despicable” (p. 202) [Italics in original]. A few of the attorneys interviewed for this study also described their work with religious language. One defender, for instance, asserted of public defense, “I don’t want to say it’s like God’s work, but it’s that important.” [34] Another recalled being inspired by such movies as To Kill a Mockingbird and Twelve Angry Men, each of which featured a lead character who “puts everything he has on the line for this person who, other than giving him respect, doesn’t have anything to give him”: I don’t want to say that I look at myself like [Gregory Peck] or Henry Fonda. Henry Fonda wasn’t an attorney, but you’ve seen the movie. The savior, an avenging angel. But you do get that feeling sometimes when you’re able to do a good job. [5]

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What is even more intriguing than the use of religious imagery, however, is the number of lawyers who report actual religious motivations for doing public defense work; this was true of attorneys from Jewish, Roman Catholic and Protestant backgrounds. In one office, for instance, a public defender hung a wall display bearing the exhortation from the Book of Deuteronomy: “justice, justice shall you pursue.” [41] Another asserts of representing the indigent, “for me, it’s more of a calling. This is where I think I should be. It’s almost a religious thing with me. As a matter of fact, if it wasn’t, I wouldn’t be here. There’s no doubt about it.” [23] A third attorney reveals, “I’m from a large family, really religious-oriented. I’ve had the extraordinary benefit of having gone to private schools, so there’s an expectation to pay back.” When asked to expand on the religious impetus for public defense work, this lawyer states simply: “Two commandments: love God and love others as yourself.” [9] The following exchange with a different defender features religious references of a similar sort: MW: Why do you do this job? Why are you not content to let someone else do it? Why are you the person that does it? PD: For me, it’s a very conscious choice. I like it. I’m good at it. I like my clients. I like the results I get. If someone has to do it, it might as well be me. It fulfills my social obligations. It works for me and my family privately. It’s interesting, satisfying, even edifying sometimes. MW: You mentioned your social obligations. Can you elaborate on how this job works to fulfill these social obligations? PD: There’s a quote from the Bible, “To whom much is given, much is expected.” I’ve been given a lot by virtue of where I come from. Social advantages. Educational advantages. Financial advantages. This is all well and good but not everyone has that. I think if you have so much, it’s your obligation to use it in a constructive way or share it. MW: It’s interesting that you just quoted from the Bible. Is your religious faith or religious identity something that motivates you to do this work? PD: I think so. Absolutely… I don’t think as a society we should give up on anyone else in society. That’s way too prevalent an attitude, and I don’t think it’s acceptable... Everybody is a gift to us and to somehow discount that because the person is a quote-unquote “criminal” is an injustice to us and an injustice to the person. [14]

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Other attorneys cautioned that while their faith might not directly influence their work as public defenders, their commitment to helping the poor is deeply entrenched in a worldview profoundly shaped by religion. One defender made it clear that although “it’s not something I’ve laid awake at night thinking about,” a devotion to the teachings of St. Francis “kind of manifests itself, and it certainly is a foundation. And I make no bones about it.” He goes on: I have a lot of strong feelings about civil rights and civil liberties, and the Franciscan philosophy of peace and love and harmony. And I guess if I go back to look for something in my past that had me doing what I’m doing, that’s probably it... I’m not saying that’s the reason I made the decision, but you asked me about underlying philosophy and I think that’s part of it. [31] Even an irreligious lawyer speculates that values instilled by a religious upbringing influenced the decision to become a public defender: I think a lot of my early religious education had an effect, going to Sunday School, learning how Christ would want you to behave. I’m not a religious person, I never go to church. But when I think back to my early education in my church and how I was raised by my parents, I can see how it had an effect. [37] Public defenders who relate their vocation to their faith have not garnered much scrutiny. To be sure, there exists legal commentary examining the theological justifications for defending the indigent (e.g., Reza, 1999; Smith & Montross, 1999). In addition, a book authored for a Christian publishing house recounts Evangelical attorney Chuck Hogren’s experiences at the Cabrini-Green Legal Aid Clinic in Chicago (Claerbaut, 1978). It appears, however, that religious motivations for public defense work have not much been explored. There are defenders, after all, who are impelled by religious directives to provide justice for the weak, help for the needy and succor for the poor. Clearly, this phenomenon warrants closer inspection in the future. NEEDING TO BE NEEDED As important a part of the altruistic motivation the act of helping others is, the incredible fulfillment felt by those who render assistance to people in need may in fact be the most compelling of all its components. Public defenders feel extraordinarily good about

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themselves when they help clients in trouble; this is especially intense on those occasions when the defendant in question is factually innocent, the target of an overreaching prosecution, socially disadvantaged, or in some other way particularly sympathetic. Bellows (1988), for example, refers to the dismissal by the prosecution of all charges against an innocent defendant as “a sublime moment of joy” (p. 76) and the placing on probation of a defendant whose guilt of manslaughter was mitigated by the decedent’s provocation as a “moment of glory” (p. 93). One may wonder, however, if there is a point at which joy for clients blends into glory for defenders. To be sure, this is not to imply that public defenders are driven by smug selfinterest, but rather that altruistic motivations spur lawyers not only to help their clients but in doing so, to fulfill their own needs for reinforcement and appreciation. In a particularly penetrating observation, in fact, one of the attorneys taking part this study maintains that many public defenders have a “need to be needed”: I think a lot of attorneys, particularly attorneys who do criminal defense work, poverty law, are motivated by a need to be needed. That’s not true of a prosecutor, because, believe me, you don’t care, you don’t have the connections with the victims or whatever, in the sense that you are needed here. You are needed. Your client needs you. He cannot manipulate the system by himself, even if he thinks he can. So, you play a vital role. And I think that has a lot to do with why people do this. It’s an intrinsic reward that nobody sees- that the attorneys who have been doing this a long time… have a desire to be needed, and this job puts them in a position to do that. [19] Deutsch (1990) addresses this idea when she explains that “sometimes a case, a client, comes along that makes you forget all the other frustrations and makes you know why you have decided to become a Legal Aid attorney.” For her, such a client was a 15-year-old boy named Rene. Despite a difficult background- his father was murdered, his stepfather disabled and his family on welfare- Rene had done fairly well in school and had never been in trouble with the law. Joking around one day with friends, however, he set fire to a piece of paper in a broken window of a house; in an outcome no one could have foreseen, the building went up in flames, killing four people inside. Through Deutsch’s efforts, Rene was acquitted of the murder and arson counts that would have carried an adult criminal sentence and his case

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was removed to Family Court. Deutsch recalls how she felt when Rene expressed appreciation for all she had done: “I was ‘paid off’ for all of the hard work and all of the frustrations involved when, at the end of the case, Rene said to me, ‘Thank you, Paula, another lawyer wouldn’t have worked so hard for me.’ Better than a bonus check” (pp. 390-391). Interestingly, Babcock (1983-84) provides a very similar account that not only reflects altruistic reasons to do indigent defense work, but in addition evokes the critical motivation discussed in the next chapter as well as the egocentric version of the pragmatic motivation discussed in Chapter Five. She recounts her experiences with a “poor, black and ugly” client named Geraldine who had spent most of her adult life incarcerated and had no real defense to a federal drug charge carrying a draconian sanction: if convicted, Geraldine faced a mandatory 20 years in prison with no possibility of probation or parole. When the prosecution refused to permit what was customary in such a situation- a guilty plea to a local law carrying a reduced sentence- Babcock went to trial with an insanity defense. While “Geraldine observed the seven days of trial with only mild interest,” Babcock’s performance was inspired: “at the trial, I was choking with rage and righteousness. I tried to paint a picture of the impoverishment and hopelessness of her life… The prosecutor and I came close to blows.” In the end, when the jury found Geraldine not guilty by reason of insanity, Babcock received her greatest reward. Recognizing that “the case became my case, not hers,” Geraldine responded by “throwing her arms around me, [and saying]: ‘I’m so happy for you’” (pp. 178-179) [Italics added]. Many of the lawyers interviewed here similarly affirm that, uncommon though it may be, it is tremendously rewarding when a client expresses appreciation for their work; several even assert that this satisfaction is enough to compensate for the much more typically mistrustful and ungrateful defendant. This may happen during the course of a defender’s representation, or afterwards in the form of correspondences, telephone calls, gifts, or personal encounters with grateful clients, whether innocent or guilty, acquitted or convicted: MW: So, what would you say are the best days that you’ve had on this job? How would you describe them? PD: The best days? The best days are when the people are happy with us. MW: The clients? PD: Yeah. That seems to be the best day. When I go home and somebody has said to me, “Thank you. You really did a great job for me.” Or a family member has called and said, “I know you’re doing everything you can for him, thank you.” Those

Altruistic Motivations are probably the best days, because we don’t get praised a lot. We don’t get thanked a lot. We get a lot of abuse, a lot of comments. So, one client telling us, “Thank you,” or a handshake or a hug is a wonderful feeling. [10] MW: What are some of the best things about this job? PD: The best feeling is when you see somebody two, three years down the road, and I’ve seen a lot of it, and they come back to you and say, “Thank you. You saved my life. You helped me straighten out my life.” Anyone can make money. How many jobs do you get, where you can actually make a difference in somebody else’s life? That’s part of this job... You can really affect somebody’s life. And I think that to make your life of any value, you have to do something of some value… In my life alone, I’ve met at least ten people- at least- who have come up with me when I’m with my [family] and it says something, you know? To me, it says something. [33] When I come in, some days I just say, “I can’t take it anymore. I just can’t. These clients are frustrating me.” But, I’ll see someone on the street, and they’ll [be excited to see me], because I somehow touched their lives. Maybe this is as close as I’ll ever be to be being a parent. But it’s wonderful. [45] I have gotten lots of personal letters and notes and thank you’s from people who have absolutely no obligation to do that sort of thing, and I find that that’s very nice. Actually, I had [a former client] embroider me this thing that was suitable for framing. [Laughs] I forget exactly how he phrased it, but it was “best attorney ever” or something like that. But the thought of this guy sitting in a jail cell [doing this for me] because he thought that I did a good job for him was nice. [12] PD: At times, [this work is] emotionally frustrating, [but] at times, it’s very gratifying. MW: What is gratifying about it? PD: When you have someone you’ve helped and who stayed out of trouble and made something of their lives, and they come back and tell you, “Thanks.” Or, when you have a trial and you can demonstrate that the cops have no credibility and

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Public Defenders the defendant can have a fresh start and put everything behind them and they thank you for everything you’ve done. [6] MW: What are some of the best things about this job? PD: This job? When a client gets out- released- and the client thanks you. It’s rare, but it happens once in a while. [26] Every Christmas when you get thank you notes and updates from clients who have turned themselves around, or haven’t turned themselves around but are thanking you for what you’ve done for them, it sort of confirms that you’ve made a difference in somebody else’s life and I don’t think there are many jobs in this world where you can say that. [18] MW: What are some of the things you like about this work? PD: A lot of people, if they see you in there fighting for them, doing the best that you can, they appreciate that. And, a lot of times, whatever the disposition of the case is, when it’s over the person will shake your hand and say, “Thank you, I appreciate it.” [5]

CONCLUSION The recognition that indigent defendants are people too- and vulnerable people at that- creates in many public defenders protective feelings and a strong desire to help clients overcome their troubles. Perhaps more than anyone, once again, it is Bellows (1988) who synthesizes the assortment of ideas that animate the altruistic motivation: One of the most wonderful things about being a public defender is the enormous number of opportunities you have to help your clients (and make yourself feel good to boot). You can get their case dismissed pre-trial. You can extract fantastic plea offers from the government. You can keep your clients on the streets pending sentencing. You can write wonderful sentencing letters that just bowl the judge over. You can get your clients out on probation. And, of course, you can win jury trials. Even if none of these things is possible, you can treat your clients with respect and with dignity. (p. 74) For many defenders, then, the altruistic motivation comprises a number of particularly compelling reasons to do the job they do. There is a sense among a number of the attorneys taking part in this study, moreover, that too few outsiders are able to arrive at such an

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understanding, obvious though it may be to those who represent the indigent. As such, several feel a special duty to do this kind of work: For me, I have an obligation, a moral directive to serve these people. [9] I guess if there’s anything [that led me down this path], it’s having this sense of social responsibility. [14] I have to feel like I’m giving back something. And that’s just the way I live my life. I just really want to feel like I’ve done something for somebody. [25] Altruistic motivations, therefore, provide for a number of public defenders a ready answer to questions that ask why, if someone must be a public defender, that someone must be you. Consider, in the end, the defender who responds to this question by saying that “[my clients] need help. So what am I going to do? Leave it to somebody who doesn’t care as much? No. I’ve got to be here!” [42]

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CHAPTER 8

Anti-Establishment Motivations Critical Motivations, Part I

INTRODUCTION TO CRITICAL MOTIVATIONS While taking a Legal Ethics course at Harvard Law School, Kahlenberg (1992) explored the tensions between “tactics and ethics” faced by criminal defense attorneys. These tensions, he concluded, were often reconciled with reference to the “anti-Establishment thinking… deeply ingrained in the psyche of the defense attorney” (p. 206). Pizzi (1999) makes a similar observation, albeit with a more disapproving tone; he rebukes indigent defenders for pro-defense excesses that serve to compromise a truthful determination of the actual facts at issue in a case. Pizzi attributes such behavior to the “‘public defender mentality’ that encourages them to see themselves as standing outside the system and therefore not obligated to conform to its rules” (p. 134). Indeed, these remarks seem particularly incisive; for many public defenders, critical, rebellious, anti-Establishment motivations inspire them to challenge the general conventions of society as well as more mainstream conceptions about the causes of crime and the proper functioning of the criminal justice system; they serve as some of the more compelling responses to the question: “why should I do this job?” Described by McIntyre (1987) as the public defender’s “rebellion against society,” (p. 169) such motivations have also often been addressed in a vague fashion that is not that attentive to particulars. Bronx defender David Feige (2001), for instance, states, “I choose sides based on politics and ideology” (p. 60). Uphoff (1992), moreover, speculates without further detail that some public defenders may be classified as “ideological zealots” and notes that those in Dane County and Milwaukee County, Wisconsin “were committed professionally and ideologically to obtaining the best possible results for their clients” (p. 427). Eisenstein & Jacob (1977|1991), in addition, report that the office of the Detroit Legal Aid and Defender’s Association included a number of staff attorneys who were “ideologically committed to the defendant’s perspective;” compared to 145

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the other research sites in their book, moreover, “the office staff contained more committed, defendant-oriented liberal-to-radical attorneys than in either Chicago or Baltimore” (p. 156). A private defense attorney quoted by the authors, in fact, approvingly refers to “the militants or Marxists” in the Detroit defender’s office (p. 157). Another example is from an ex-prosecutor interviewed by Hermann, Single, & Boston (1977) who maintains that District of Columbia Public Defender Service lawyers were “philosophically committed to defense work” (p. 132); New York judges interviewed by the same researchers referred to Legal Aid attorneys as “lawyers who are out to ‘fight the system and make a statement’” (p. 85). Platt & Pollack (1974), lastly, recount the late-1960s clashes at the Alameda County Public Defender’s office; the chief defender was unhappy that many of his politically minded assistants seemed to forget that his office “represented cases, not causes” (p. 245). In his words: I wanted no zealots, no person who had a philosophy of this, that and the other thing. I was not on the side of crime, I was not on the side of criminal and anti-social behavior. Nobody who worked for me was going to be either. (p. 242) For many attorneys, then, there is a political aspect to public defending. But what exactly does this all mean? “LAWYER-OUTLAWS” AND THE REBELLION AGAINST CONVENTIONAL MORALITY A close inspection of the sources relating to indigent defenders reveals several identifiable aspects to the critical motivation. The first manifests a generalized rebelliousness against the traditional status quo. It is quite unrelated to any explicit or carefully formulated belief about social injustice and can be most accurately conceived of as a broad dissent against what is accepted by mainstream society as decent, moral, proper or upright. Defenders motivated in this way, therefore, are reform-minded in only the most abstract manner; the idea, really, is not to promote change in a positive sense but to express some kind of challenge to authority for the sake of challenging authority. As such, many defenders are drawn to their work not in spite of, but precisely because “conventional morality has it that defending guilty people is tantamount to an obstruction of justice” (McIntyre, 1987, p. 142). These defenders, in fact, enjoy challenging the “Establishment,” take pleasure in violating what is sacrosanct, and relish their role as what Babcock (1984-85) calls “lawyer-outlaws” (p. 314).

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Wishman (1981) is at least partly driven by this sort of motivation; he contends that “as for any moral component to my work, I knew it had less to do with right and wrong than with an obscure identification with the underdog, even a despicable underdog, against authority” (p. 16). Yet it is Kunen (1983) who supplies the most unambiguously antiEstablishment expression of the critical motivation: It occurs to me that maybe I like putting criminals on the street; that, far from being an unfortunate side effect of defending the rights of the individual, maybe putting criminals on the street is the main point; that, possibly, I am motivated by the sheer joy of thwarting the will of authority. Maybe I became a defense attorney so I could be bad, and still be good. (p. 190) [Italics in original] Several observers have noted, moreover, that though nonverbal in nature, the public defender’s personal appearance functions as something of a calculated expression of a general anti-Establishment ethos. One of the most experienced defenders in Kunen’s (1983) office, for instance, is depicted as someone “who in his full beard and long hair looked like nothing so much as a Hell’s Angel” (p. 30). In a similar fashion, Platt & Pollack (1974) recount that in the late 1960s and early 1970s, some Alameda County public defenders were forced to resign by the traditionalist office regime because of “inappropriate etiquette (too long hair, an untrimmed moustache, flashy clothes, and so on)” (p. 254). Intriguingly, the public defender’s external appearance has been observed to contrast with typical prosecutorial fashion; this seems to underscore a clear, albeit unstated, distinction in ideology and approach. Kunen (1983), for example, mused poetically that “in their uniforms of charcoal gray, prosecutors appeared dignified and orderly. We defense attorneys wore easier clothes day-to-day, slacks and jackets, and those donned grudgingly, scarcely concealing the denim soul within” (p. 182). The sense that distinctive exteriors reflect notable differences in outlook is echoed by Heilbroner (1990), a former Manhattan assistant district attorney, who remarks in his memoir: Defenders looked different than ADA’s. They wore tweed jackets, blue jeans and sneakers; one of the men had a ponytail that hung halfway down his back. Every male prosecutor I had seen came to work in a dark suit, starched shirt, and silk tie. Female ADA’s, too, wore “power clothes.” Though we were all lawyers just beginning our careers, we

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Public Defenders had apparently chosen sides: ADA’s were the State, Legal Aid was Everyman, and each looked the part. (p. 24)

Just as in the literature, moreover, public defenders in this study said things like “I’m an anti-authoritarian person,” [4] “I’ve got an antiauthoritarian streak in me,” [24] “I’m very contrarian” and the job is about “wanting to go against the grain.” [18] Several lawyers, in fact, have been rebelling for most of their lives. Consider, for example, this exchange with an attorney known for radical political views about society in general and the criminal justice system in particular: MW: Where does this all come from? The whole [ideological] outlook that you have- on your job and the larger issues as well? PD: I don’t know. I think I was just born with it. I came from a pretty big family. Both sides were… both real religious and Catholic and a number of my siblings, they’re very traditional. And so from the time I was real young, I was rebelling [Laughs] Against everything. Against the proper role for women, against the Church and all that. I started in elementary school, skipping church, and going to a park and stuff like that. I think it’s congenital! [Laughs] I don’t really know where it came from. I remember being aware of my disagreement with society from the time I was little.1 [48] Another defender recalls how involvement in the anti-war protests of the 1960s solidified a pronounced distrust for authority that reflects a mindset characteristic of many public defenders: I went to college during… the height of the anti-war movement and I was fairly politically active in anti-war stuff. There was a button that a lot of people wore at that time that said, “Question Authority.” And questioning authority has always been a central thing for me, because I think that I came of age at a point where [in] this country- and this American culture… people accepted blindly just to do anything the government said. But during the 60s, and more so towards the late 60s, people were coming to the realization that authority figures and the government and everyone who was supposed to be in power and doing the right thing were not always right and not always doing the right thing and not always acting from high motives. And I think that… people who are drawn

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to be public defenders are people who are willing to question authority and go against the grain. [36] Both this attorney and another [35] pointed to the Kent State shootings as having profoundly shaped their worldview. Several other defenders also noted that the 1960s served as something of a catalyst that helped to channel them toward a career in public defense. To be sure, while these lawyers were opposed to the Vietnam War when they were younger, it was not the driving force in their lives. As one defender put it, “I was a hippie back in the 60s,” and although he attended protests, “I wasn’t exactly a leader or anything.” [28] According to another, “I grew up in the 60s. I took part in a few Vietnam protests. Not many. I didn’t want to stick my ass on the line!” [2] A third was too young for college at the time, but recalled marching in local anti-war demonstrations and being inspired by “people who were willing to get arrested, protesting something that they believed in. Those things sort of impacted me, meant something to me.” [12] In sum, while these defenders were certainly not celebrated activists, they dabbled in the culture of protest. Precisely for this reason, however, such experiences seem a cogent illustration of the generalized nature of the public defender’s challenge to authority. One final example is the defender of a younger generation who, although identifying a number of specific targets for protest activity, nevertheless describes a broad “lifestyle” of dissent that naturally connects to public defense work: PD: I was going through a lot of the peace movement, that sort of thing in [this city]- the end of the Cold War. MW: What time period are you referring to? PD: That was the late 80s. I was going to demonstrations. Traveling around to different parts of the country and engaging in civil disobedience, that sort of thing. So it was like a lifestyle of constantly focusing on, I guess, the underprivileged or people who aren’t thought much about in society. And the death penalty was a big part of that also. You know, actions against the death penalty. MW: It’s interesting to me that this is part of a broader lifestyle that incorporates a lot of different issues you seem to be interested in. Almost like a mindset, something that’s been part of you for a long time. Can you elaborate on that? PD: Yeah. [When I graduated from college, I wanted to be a professor]. And I couldn’t shake what I knew I was supposed to be doing, which was not sitting in an ivory tower as a

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Public Defenders professor. So I started volunteering for [an organization helping recently released ex-convicts]. And I was helping to run a job program for them. Because I kind of needed to. I mean, I needed to be doing some sort of volunteering. So I went with them on a road trip [to a conference on prison uprisings]. Amazing day. And literally, on the car ride on the way back, I canceled all plans to go into [academia]. Mentally, I just said, “Okay, I guess I’m going to law school.” And by the next day, I was signed up for the LSAT’s. And so I wrote on my law school application that it was like there was a ghost following me. Do you know what I mean? I mean, it really felt like I couldn’t have done anything but go to law school, or in some other way follow that sort of path. And, it is all connected. It’s absolutely connected…. I know that’s not true for everyone... But most of it is a package. [42]

Although for the attorneys that follow, other aspects of public defense work have been more influential, they nevertheless observe that at some level, rebellious motivations have functioned to sustain them throughout their careers: Probably as a teenager, I was more of a social revolutionary, you know, “power to the people.” The “little guy gets the raw end of the stick” kind of thing. I was more vocal about people who weren’t in power. I don’t think that’s how I fell into doing this kind of work, but I think that allows me to do this without being worried about earning a lot of money and stuff like that. [19] MW: You’re telling me [that helping other people is] important to you. But if that’s so, why are you here and not a prosecutor? Because, presumably, you could help victims and communities by working at a prosecutor’s officePD: Yeah! MW: And that wouldn’t be inconsistent with that sort of helping outlook. PD I always had this sort of underdog orientation also. So, you know, a little rebel/outlaw. Not that I want to make myself look tougher than I am, because I’m not. MW: What goes into that? PD: [Sighs] That, I think, is the hardest thing for me to explain. I don’t know, because it’s really kind of deep into who I am. That’s really hard for me to answer. I don’t know if

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I can answer it. I could tell you that all those things that brought me into this are not really why I love my job. That’s a whole different thing. [28] It is interesting that this attorney could not put into words exactly what the “rebel/outlaw” orientation was all about. One reason the literature seems somewhat vague about the anti-establishment motivations of public defenders is that defenders themselves often offer little in the way of a thoroughgoing explanation. Indeed, this version of the critical motivation may not necessarily be driven by a coherent political ideology. In the words of the lawyer above, rather, it is “deep into who I am.” Being a public defender, again, may be a means of expressing one’s individuality or a way of defying societal norms. Or, as the following attorney proclaims, being a public defender may simply provide a figurative opportunity for someone so inclined to holler a bit and shout “Fuck You!”: PD: My personality- I like to tear things down and criticize and destroy. I’m not as good as building and creating. It’s creative in a way to destroy. On the prosecution side, you are building. In defense work, you have to destroy. I’m more of a pessimist- negative, cynical. MW: What do you mean, destroy? PD: Taking a case and breaking it down and making it nonexistent. Making excuses or destroying it outright. MW: So you mean intellectually? PD: Emotionally, I like to destroy. Intellectually, it comes in later. It’s the need. That’s something that I am. Cynical and negative. I’ve always been rebellious. I don’t want a judge to cite me for contempt, but within the rules you can yell and scream and rebel. That’s what you do in this job… MW: So this desire to destroy- is it all political for you? PD: Tear down the walls! I don’t consider myself a very political person. As a rule, everything I do is more like, “Fuck You!” MW: Is it anti-authoritarian? PD: Exactly. I hate being told what to do. [26] Perhaps this sort of thing also explains the personal style and outward appearance of some public defenders. One of the lawyers interviewed for this study, for example, recalled that when he was younger, it would surprise him when clients thought he was a

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prosecutor: “‘Do I look like a prosecutor?’ (My hair used to be a lot longer).” [24] Another defender described a particularly outrageous outfit that is meant to demonstrate a spirited defiance to both clients and the court: PD: It’s sort of like the mindset for me: “Because I can.” [Laughs] I bought this outfit, total polyester, not-occurring-innature green suit with the flares. And sometimes I wear it when I’m feeling particularly defiant. MW: In court? PD: Yeah. It’s a suit. MW: Like Joe Pesci in My Cousin Vinny? PD: Something like that! Not as unreasonable! It’s a suit! What are you going to do? It’s sort of like a dare. Here I am. What are you going to do? That’s how I want my clients to be. [45] This is not to say that the typical public defender is as outlandishly costumed as this; most, no doubt, come to work in only the most professional and dignified attire. Still, as the literature suggests, there are defenders who present themselves in a manner that prosecutors seem unlikely to emulate. Even if it is a rare defender who dresses in an outfit as provocative as the one described above, it does seem that for some public defenders, their appearance is just a bit more flashy or a bit more grungy, as the case may be. This may simply be a matter of personal taste. Or, it may be that for certain defenders, the choice of clothes and hairstyle is a deliberate gesture designed to communicate disdain for conventional norms and expectations. The link between “rebelliousness” and “anti-authoritarianism” on the one hand, and public defense work on the other, is manifested in the delight this lawyer takes from the job. The words that follow, in fact, are strikingly reminiscent of McIntyre’s (1987) suggestion that there are defenders who are drawn to their work not in spite of but precisely because “conventional morality has it that defending guilty people is tantamount to an obstruction of justice” (p. 142): MW: What other kind of work would you do if you left this? PD: I have no idea. Which is why I haven’t left. That, and because it turns out that I’m not that bad of a lawyer either [Laughs]… I would have to do something that would make me feel as wonderful as I feel when I say I’m a public defender. I sort of love that. I’m like, “Yeah! Damn right I am!” One of the reasons why I don’t know if I could do

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another job is because I like saying it: “I’m a public defender!” MW: Why do you like saying it? Because most people don’t like it? PD: Because it just seems to fly in the face of what people think [is right]. You know, “Defending criminals?” I mean, what bullshit! [45] Such a mindset is nevertheless rejected by one prosecutor-turneddefender, who comments that the public’s approval and support was one of the more rewarding things about prosecution work: PD: I liked being a prosecutor. I enjoyed it very much. It was a fun job. A lot of things they do were rewarding. MW: What was rewarding about it? PD: You’re doing a good job. You’re part of the system that’s obviously perceived as being the good guy. That always makes it good. What we do is not as popular. You don’t have people slapping you on the back saying, “Way to go!” MW: Some people sort of like that, though. PD: Like what? MW: Being not popular. PD: I don’t look at it that way. I know people like that. I know there’s some people like that. I’m not into this antipopular type thing. I’m just a regular person and I’m doing my job. [17] Another public defender, however, is utterly captivated by the criminal defendant’s rebellion against the rules of society, something he describes as his “fascination with the outlaw.” And while this is a clearly an intellectual interest rather than an affinity for crime or criminals, this lawyer, in fact, sees the job of defending such people as something of a personal rebellion as well: PD: It’s intriguing to me the kind of outlaw nature of a criminal and how they put themselves against the interests of society. So there’s a certain mentality that I find very interesting. I don’t know that I can say why I find it interesting, but I find it interesting that people are willing to do things that are against the law. And sometimes, it’s violent. Clearly, sticking a gun in someone’s face, I would never condone that type of act, but it’s fascinating to me that

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Public Defenders someone might do that. On one level, it’s fascinating. On another level, it’s repugnant. Someone who is using drugs, they’re violating the law. That’s a so-called victimless crime. There’s a mentality there. God, how many people are smoking marijuana or doing drugs casually? But they are in a sense saying, “Hey, I don’t agree with this.” You have a casual user. So there’s a certain mentality that’s against, against the status quo, against societal concerns. MW: If your clients are outlaws in the sense that they’re standing outside the law for whatever reasons…, how would you characterize people who do what you do? I mean, is there sort of an outlaw aspect to your job as well? PD: I think so… It’s certainly not an identification with the act itself, but I think there is an identification on some level with the notion that you are going to stand up and fight the government, you’re going to fight the police, you don’t trust the authorities. [15]

For some, finally, being a public defender is more than a reflection of an anti-authoritarian way of thinking; for these lawyers, their rebelliousness may even subsume their work as a public defender. One lawyer, for example, expresses an antipathy for the legal profession that leads him to wonder about the integrity of his own work. This is not exactly a moment of epiphany, to be sure; this defender is not in the least disturbed by the thought that his work lacks integrity. Rather, it is as if he is so contrary that he must even denigrate himself: MW: If someone came up to you and said that they wanted to go into defense work for the indigent, what would you say? PD: I would recommend it as the best kind of law to practice. If not a criminal lawyer, I’d say don’t go to law school. Lawyers are slimy, sleazy: making excuses for people all the time. MW: It’s funny, it seems to me that your rebelliousness is directed toward your own job as much as it is directed outwards. PD: Right! It’s a paradox! I see lawyers on TV. Like [President Clinton’s impeachment lawyer] Abbe Lowell. I say, “Fuck You! Shut Up!” Who can stand them? But he’s doing well at his job. It’s hard to recommend that. I couldn’t do it. It’s so transparent. But I guess I do that at trial. Act like my clients do such great things. I guess I do that too! [26]

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Another lawyer is even considering leaving public defense for fear that the fight with authority has become more important than the best interests of the client. Defendants, in other words, have become “just sort of pawns in my greater fight,” thus producing a rather troubling ethical dilemma: “Part of me, a sort of antisocial part of me, has a real problem with the court, and any chance I have to stick it to someone, I’m okay. And if I can do it and use my client as a medium to do it, I will.” This defender continues: That’s why I might have to leave. My quest to sort of override authority or stick it to the man has maybe superseded the representation of my clients. I mean, I’ve had clients who I’ve gone in and said, “Okay, this is the offer, but I’m not letting you take it, because it’s a bullshit offer.“ And I’ll walk away and they’ll follow me and say, “Come back here! Give me that offer!” and I’ll say, “No, you’re not!” Yeah. That’s the wrong approach. [45] In conclusion, more than one-fifth of the public defenders interviewed for this study described some sort of “anti-authoritarian” or “rebellious” motivation to account for their career choice. It may be, moreover, that this sort of mindset is an essential part of their personal and professional identity. If, as the chapter on pragmatic motivations suggests, being a trial lawyer is central to the self-identification of many criminal lawyers, then being a particularly “rebellious” or “antiauthoritarian” defender may well play the same sort of role for some indigent defense attorneys. These are amorphous ideas, to be sure. Still, it may be the sort of thing that propels criminal lawyers interested in government work to public defense as opposed to prosecution. “US AGAINST THE SYSTEM” There is more to the defender’s confrontation with authority than a generally defiant nature. If the first version of the anti-establishment motivation is about an abstract rebellion against conventional morality, another involves challenges to what is seen as a corrupt, cruel and biased criminal justice establishment, and encapsulates the defender’s views about the manner in which society in general- and the criminal justice system in particular- responds to crime. As Smith (1990) suggests, “there is a politics to being a public defender- a challenge to institutionalized inequality within the criminal justice system” (p. 2). Many public defenders describe their work as the representation of a lonely accused against “the system.” They look at themselves and

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their clients as underdogs forced to battle hostile police officers, prosecutors, and judges- all of whom are backed by unyielding, toughon-crime public sentiment. According to one lawyer, as “a defense attorney [you’re] dealing with an individual who’s depending on you totally, and for whom the system is stacked against,” [19] while in the words of another, “the satisfying aspect” of representing clients accused of violent felonies is “taking an individual like that, and standing between him and the forces of the State, that want to send him away for the rest of his life.” [21] Although it is true that public defenders, like prosecutors and judges, are paid by the government to ensure that the courts are operational, one lawyer insists that, in an important sense, public defenders stand outside the system: their job is to work to obstruct the forces arrayed against their clients: MW: You said you try not to be part of the system here. What do you mean by that? PD: Well, I mean the prosecutors are clearly part of the system. And the judges and corrections and the police and all of that. All of the system that works to put someone in jail. Because we [work for the government] to represent this class [of defendants], essentially we are part of that system. We make the wheels move. The way we’re not part of the system is we try to do everything we can to do to stop the process of putting someone in jail or giving someone a criminal record. So, in that sense, we’re not part of the system because we’re trying to bind the system. You know, stop it. Stop that from happening. We do what we can because that’s the goal of our clients. [18] Other attorneys are both conscious and resentful of such responsibilities. According to one defender, for example, “a phenomenon we experience when we do this job is anger, an incredible anger about the way the system operates. It keeps you energized.” [9] Another even compares public defense work to prosecution and asserts that there is no challenge in the latter, because “you can win cases with a blindfold on and your hands tied behind your back as a prosecutor. The law is on their side. They have the finances, the judges, the public.” [37] The lawyers that follow elaborate about what they see as the informal alliance that exists between prosecutors and judges: The State has incredible resources. Investigating, preparing and the prosecution of the crime. Our society as a whole, understandably, abhors crime. Juries and judges are both

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eager to convict if you’re accused of crime, of whatever crime you are accused. And therefore, to succeed at the trial level or the appellate level… takes a lot of work. [41] The people who I deal with are the prosecutors, who are the arm of the State, and the judges who are theoretically neutral, but who most defense lawyers will tell you are even more an arm of the State. I feel like not only are the prosecutors my adversaries, but the judges are also my adversaries. [36] For the lawyer above, in fact, the State is so powerful that, when a client is acquitted or a case dismissed, “you feel like you are taking on the entire system and you feel like you are single-handedly beating the State. You feel like David felling Goliath.” [36] The following defender invokes the same biblical analogy: So much inertia is in place to convict and sentence and sentence harshly. There’s the [city] police force. There’s the prosecutor’s office. There’s [the state legislature] making laws tougher. There’s judges who are ex-prosecutors. The system is just a chute going down, and there’s not much you can do, and gravity’s helping it along and it’s ridiculous. If you can yank somebody out of that freaking chute, it’s great. You foil all of them. It’s just great… I like foiling the system. It’s like a David and Goliath type thing. I like beating the cops, beating the prosecutor’s office. I like beating the judges. Half the time you get a not guilty verdict, the judge is pissed off, and it’s the greatest satisfaction in the world. Especially, when they’ve been ruling against you the whole trial. It’s fantastic: “You’re not after all going to get to sentence this guy. Tough shit.” [46] In the following remarks, defenders declare allegiance to the “underdog” in the struggle with an ever-powerful system dedicated to the apprehension, conviction and incarceration of their clients: I guess you could say the victim who’s been victimized might be the underdog, but I see them as having the support and the backing of public sentiment, of the police, the State, the huge amount of resources, the judges. So I think in reality, as a practical matter, it’s the defendant who has to go up against all of that. [16]

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Public Defenders I like the fight of going against the State and sort of being the underdog and trying to go in and protect someone from this unwieldy strength and power. [18] It’s the rooting for the underdog theory. When you’re a criminal defense attorney, I think the general consensus is that no one is really on your side, despite [the ideas that] there’s this fairness that’s out there and the judge is supposed to be impartial and everyone’s supposed to be on a fair playing field. I don’t think it really is all that fair, especially for the indigent clients that we see in the public defender’s office. [39] I’ve always allied myself with the underdog, and the individual. The prosecutor is basically an arm of the State. And they’ve got the police and all that other stuff lined up on their side. And it’s basically one person against the State, when you’re defending the indigent, to even the balance. [4]

One lawyer suggests that the Constitution itself attempts to remedy this imbalance by providing for criminal defendants a variety of rights and protections. In what this attorney describes as essentially a political act, the job of public defenders is to try to close the gap when it comes to the indigent: There is a political aspect to criminal law as well. You can make a political analysis out of almost anything, but clearly it flows from the constitutional underpinnings. Say you have someone who has allegedly committed a crime. You have the police, the government prosecuting the individual. So the political aspect is that you have one person against the government, against the police, against the accusation. [15] Another defender, however, is rather skeptical about whether in its real world implementation, the Constitution truly protects the accused from the forces arrayed against him. This attorney, in fact, is convinced that it is futile to make constitutional arguments against a system designed to bulldoze criminal defendants: I’m not a guardian for the system. The system is fucked! Are you kidding? There’s no presumption of innocence. Reasonable doubt? No! You start arguing reasonable doubt, you lose. It’s not enough. If your guy’s guilty, you have to say

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he didn’t do it. You can’t argue against this fucked up system. The system is designed to put people in jail. You can’t argue the Constitution. That’s some people’s answer. Not mine. [26] Others have also suggested that constitutional violations are endemic to a criminal justice system interested in crime control above all else. One of the Cook County public defenders interviewed by McIntyre (1987), for instance, stated, “I expected a fairly corrupt system, and I found one. Here I am representing people who cheat, lie, and steal, and I find the same intellect represented by the police who arrest them, in some of the prosecutors and some of the judges as well” (p. 145). A lawyer interviewed for this study echoed such sentiments rather closely: I mean, I’m constantly shocked- maybe I shouldn’t be- but I’m constantly shocked at the things that people will do. The prosecutor’s office, what different prosecutors will do, what police officers will do- because they believe in a conviction, or they believe that a person is guilty over that person’s rights, or they’ll pull something shady by not turning something over which otherwise might help vindicate our client in some way. So, those kinds of things keep spurring me on. [38] A number of public defenders are mistrustful because they regard the criminal justice system as racist in structure and intent. Eisenstein & Jacob (1977|1991), for example, report that the lawyers of the Detroit Defender’s Association felt that: The prosecutors, many judges, their clerks, the police, and even most private defense attorneys were hostile to them. The belief that many black defendants were ill-treated by society in general and the legal process in particular formed the core of the office view… Underlying most components of the defender’s viewpoint was that widespread and deep-seated racial prejudice shaped much of what happened. (p. 156) A few of the public defenders interviewed for this study make similar assertions. According to one, “even though the law is supposed to be blind to color and social class, it’s not so all the time.” [7] Another states without hesitation that “there’s little doubt that our criminal justice system targets predominantly blacks and Latinos. It’s a racist criminal justice system. That’s who it targets: blacks and Latinos. And it protects the interests and property of white people. That’s what it’s

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all about.” [29] Indeed, this defender is adamant in the view that the criminal justice system intentionally disenfranchises poor minorities so as to provide jobs for white people: Well, there’s little doubt we all benefit from this tough-oncrime bullshit. You can call it the prison-industrial complex if you will. That by the fact that we’re maintaining these drug laws and prosecuting people really for what amount to petty crimes and victimless crimes, it’s like a massive jobs program for mostly white people, if you will. Think of all the people who are employed mostly around crime. Prosecutors. Public defenders. Secretaries. Investigators. Cops. All the police secretaries. Judges. Court clerks. Secretaries over there. Interpreters. Court officers. All the jail officers. All the jail administration. All these people. People who run the prisons, who work the prisons, who are the wardens in the prisons. The officers over there. People who build the prisons. All these people benefit from a criminal justice system. [29] Without going quite so far, other defenders also agree that the differential treatment of the poor and of minorities is the rule in the criminal justice system, not the exception: The people that I represent in particular are poor people, I’d say largely minorities, and it’s a portion of the population that I know- and anyone who has a pair of eyes knows- basically gets shit on, regularly. And it has been, generationally, for a long time. And it’s at the point now where almost every law that’s passed is a law that only affects poor people. And poor people are largely minorities. So, as I see it, the only people getting arrested are Blacks and Hispanics, some Asians and very poor whites. And these people need sticking up for more so than the rest of us. And they therefore need quality representation. [46] I think that in our society, an important facet of the criminal justice system is to warehouse poor and minority citizens. [36] PD: I don’t think the system treats everyone fairly. I don’t think people are treated the same by police officers. If you live in certain neighborhoods and have skin color of a certain tone, you’ll be treated differently. If you have no money,

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you’ll be treated differently by judges. The bottom line is, you’ll be treated differently- by prosecutors, judges, even some public defenders. MW: In what ways are different people treated differently? PD: There’s outright racism. But, it’s not only racism. It includes that, but you can’t limit it only to racism. It’s classism, too... [1] CONCLUSION Real or perceived, the idea that the criminal justice system is an alignment of mighty forces, prone to racism and deceit in its battle with forlorn indigents is something that both frustrates and motivates many public defenders. Consider, as one last example, the following remarks: I guess I kind of enjoy the underdog side of it- the defense of the indefensible and taking the side of those who no one else wishes to, and sometimes at least, no one else could. Obviously, that’s incorrect. There are tons of people who could. But most won’t. And I enjoy the feeling of being kind of the last line of defense, the last holdout for them. [43] As this lawyer suggests, the opportunity to represent disadvantaged clients and challenge the criminal justice establishment provides for many public defenders a persuasive answer to the question, “why should I do this job?” The displeasure voiced by many defenders, however, goes well beyond accusations made about the “system.” Quite a few take an acrimonious posture toward specific criminal justice actors and institutions, each of which are accused of illegal, malicious or unscrupulous behavior. The chapters that follow, then, describe the critical ways many public defenders perceive the police, prosecutors, judges, jails and prisons.

_________________________ ENDNOTES 1 Like the pious defenders in the section on altruistic motivations, religious experience affected the trajectory of this lawyer’s career. It is interesting, however, that whereas the others see their work as an opportunity to fulfill what they perceive to be their religious obligations, this public defender’s career choice is at least partially rooted in a much less enthusiastic reaction to organized religion.

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CHAPTER 9

Anti-Police Motivations Critical Motivations, Part II

Many public defenders, the literature reveals, have made it particularly clear that they do not much care for certain kinds of police behavior. Babcock (1983-84), for one, stops just short of issuing a blanket accusation of police brutality: “most people who commit crimes are themselves the victims of horrible injustice… It is… often true in the immediate case because the accused has been battered and mistreated in the process of arrest and investigation” (p. 178). Wishman (1981), moreover, was so outraged by one case of particularly audacious police violence that he referred to the perpetrators as “criminals in official costumes” (p. 133). Other defenders are somewhat more restrained and condemn police for their willingness to lie and commit perjury if it will advance the possibility of a conviction (Eisenstein & Jacob, 1977|1991; McIntyre, 1987; Wishman, 1981). Dershowitz (1982), for example, contends that “almost all police lie about whether they have violated the Constitution in order to convict guilty defendants” (pp. xxi-xxii).1 Finally, the personality traits and general demeanor of police officers appear to disturb some defenders. Kunen (1983) seems particularly troubled by what he perceives to be a condescendingly anesthetized approach to people and situations truly in need of police intervention on one hand, and on the other, excesses reflected in the brazen flaunting of macho pretensions. He relates such unpleasant experiences as his encounter with a dozen plain clothes officers- “all big stocky guys in lumberjack shirts”- who were too “languid” to put down the newspaper and help a man having a seizure2 (pp. 11-12), as well as his coffee shop meeting with two “assholes” shamelessly preoccupied with being cool and acting tough (pp. 23-24). Interviews with public defenders sustain much of this. Some defenders, as a general matter, plainly dislike the police. When asked if a career in prosecution might have been conceivable, for instance, one replied that it was not, because “I certainly wouldn’t want to be chummy with all those law enforcement types.” [4] Consider, moreover, the following remarks: 163

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I don’t like police officers. [25] I think that all cops are bad. [29] I knew all along that if I did pursue a career in law, this would be what I wanted to do, primarily because I don’t like the police. [46] I don’t really hold the police in high regard on any level. At all. I have absolutely no respect for, no deference at all for them. [39] Another attorney recalled with relish an argument with a police officer and when asked if yelling at the cop was enjoyable, responded, “Yeah, it was great!” [45] One more example is the defender who acknowledged retaining an instinctive aversion to the police despite a positive personal experience with one particular officer: There are some that are worse than others, and there are some that really don’t seem to be even human… So, as an individual, I can say yes, he seemed like a nice guy and [as far as my personal experience is concerned], I’m grateful to him for the way he carried out his investigation… But then, when I step back from that, he still is, he always was and he always will be a member of the police. I step back from the personal“he’s not such a bad guy”- to realize that he really is. [48] Illustrative as well are the defenders who assert that they especially like cross-examining police officers. One maintains, “sometimes, I get a lot of enjoyment from beating up on a cop.” [24] According to another, “anybody would probably tell you that one of the most exciting things that happens in this office is when you rip a cop up on cross-exam. Those who are able to do that, it’s nice to watch and it’s exciting for the attorney doing it.” [Laughs] [39] The most strident among these respondents dislikes the police so intensely that humiliating them during cross-examination is considered the best thing about the job: MW: What’s the best thing about the job? PD: Cross-examining cops. And interfering with their will… It’s the only job in the world where you can embarrass a cop, humiliate him, show him how incompetent he is in front of a courtroom full of people. Nothing is better. It’s just a

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beautiful, beautiful thing. I can’t tell you how great it [feels] to catch him in a whopper in front of the jury, and let him try to explain it. It’s just great. It’s great self-satisfaction. But I know he’s lying. I’ve known he’s lying well before the trial. I knew what I was going to do to him, probably, because I knew he was lying after the hearing. Now, [the] jurors, they know too. And they’re going to go back, and they won’t think now that every cop tells the truth. So, I love when juries see that. [46] To be sure, most public defenders are not necessarily this passionately anti-police. As they criticize, many stipulate that they “don’t want to broad brush it” [31] or that they indeed believe that there are good police officers. Five defenders- though critical of the police in many ways- noted friends and family members who were police officers. One even expressed an unabashedly positive impression: Police work! How do they know? It’s amazing to me what they are able to find out. I’m in the minority, but I’m very impressed with what the police unearth. Sometimes, their frustration level gets to a point where they can’t stop, but I don’t believe that law enforcement are all aggressively violating people’s rights left and right. That’s the thing that frustrates me about the system. You have public defenders who say all law enforcement is bad. How can you say that with any kind of honesty? It’s ridiculous! There’s no easy fit. [9] Still, censorious comments are expressed with apparent sincerity. It seems, therefore, that there exist unbending public defenders for whom the police inflame a reflexive distaste. Most are more restrained; yet their misgivings are not substantively dissimilar. They too convey a profound discomfort- for some even an anger- with specific police attitudes, tactics and behavior. THE ENDS JUSTIFY THE MEANS: INNOCENT CLIENTS AND CLIENTS WHO ARE NOT GUILTY Most disturbing to many of the public defenders interviewed for this study is their perception that the police act as if “the ends justify the means.” A common complaint is that officers routinely ignore the legal standards required to justify their searches and arrests. Later, many of

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these defenders maintain, the police will falsely claim in their reports and even on the witness stand that their actions were legally proper: When I started this job, I didn’t have any problem with [the police] at all. I had a hard time believing they would lie. I had a hard time believing that they would on purpose violate somebody’s rights. And again, as time goes on, in hearing after hearing after hearing, you hear lies. You know that they’re lying. They know that you know that they’re lying. Everybody knows. The prosecutor is suborning it. The prosecutor is cool with it. The prosecutor probably helped them. And the judge lets it go. And then you realize, yeah, this does happen. It’s a game. [10] One of the things I do feel strongly about is we are willing as a society to take shortcuts to achieve a goal. And I don’t believe that we were as willing a few years ago… but I think that because the end is so important, the means are not as important now. And if in their mind, they can get to that and they’re convinced this correct, and if they have to tell a little story and change the facts to make a better case, I think they do it. And I think police officers know that the prosecutors are not going to challenge them, and in a lot of respects, the judges will not question them. [17] They stop people and then make up the reason how it supposedly happened later and then they put it in a police report and the cop goes in and testifies and everybody believes him. And meanwhile, in case after case, the client’s just got a totally different story than the cop has. [29] I can’t imagine anyone who’s been doing criminal defense work for [a decent amount of time] on a steady basis not saying they’ve seen officers lie on the stand. I just can’t imagine it, because they do! And that’s really, really unfortunate. All of a sudden it’s, “I know this guy did it, so I’m going to play dumb. I’m going to go in and lie. If I said the truth, I know they would skate, or I know the evidence would be suppressed.” [35] I find with the so-called “bad guys,” it’s not as black and white as you might think. They might be guilty (though I don’t always know that), but on the other side, [the cops] are

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lying. The cops exaggerate things trying to get a conviction. So even if the guy’s a bad guy, that offends me. I’ve seen that plenty of times. [22] MW: How often are [the cops] embellishing their case? PD: I think just about every time. My feeling is, maybe I’ve just gotten too cynical over the years, when you go to trial, everybody lies. Everybody lies. Witnesses lie. Cops lie. Defendants lie. Everybody lies. The jury is there to sort it all out. But cops lie the most. I think they’re good at it. They do it to get over constitutional limitations. They do it because they think they’re getting bad guys off the street. Sometimes juries buy it, sometimes they don’t. I think a lot more cases would be tossed earlier, or judges would dismiss them earlier, if cops told the truth. [2] Cops do lie. I know that. You probably know that. And the cops know that. But they think- the ones who do this- they think that lying in their line of duty is for the public good. And they even have a phrase that they use- “testi-lying.” [31] MW: What’s something about your job that you didn’t expect when you first got into it? What did you find out about this kind of work that surprised you? PD: I was surprised to learn- I guess I was naïve enough coming in- that police officers not only make mistakes but outright lie under oath and get away with it. [24] When I started out as a prosecutor, I thought what the general public thinks about police officers. That they’re all hard working guys. They’re all motivated by the right things. They just want to see justice done… That they never lie. When they get on the stand and they take an oath, they take it religiously. I believed all those things when I started prosecuting. I now know that those things are not true. I learned those things as a prosecutor, even before I became a criminal defense attorney. I would catch police officers in lies. And it would enrage me. And it still does. [47] There is variation among defenders as to whether behavior of the sort described above is typical of police work. Some maintain that it not particularly widespread. Others argue that it happens all the time. Most

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suggest that it is not uncommon and happens much too frequently to ignore. Virtually every public defender agrees that confronting this is something that makes public defense worthwhile. As one defender put it, “I am the only buffer, the only protection between the defendant and the lying police officer. And if I can show that the police officer is lying, I have not only done my client a great service, I have done society a great service, and I take that seriously.” [47] Recall, moreover, the well-known distinction between “factual guilt” and “legal guilt.” The question of “factual guilt” refers to whether, in fact, a defendant truly committed the crime in question. The question of “legal guilt,” on the other hand, asks whether this has been lawfully discovered by the police and can be proven according to established courtroom procedure. Evidence that the defendant has in fact committed a criminal offense will be suppressed in court if obtained by the police in violation of the suspect’s constitutional rights; in such an instance, it may be said that despite being factually guilty, the legal guilt of this defendant has not been proven. Interestingly, in this regard, although there is agreement in the literature that the indigent accused are characteristically both factually and legally guilty,3 many defenders assert that in low-level cases- particularly those involving drugs- quite a few of their clients are actually not legally guilty. “Clearly, cops frequently catch people who did something wrong, but sometimes their methods are unsound,” [15] maintains one public defender, while another says of the police that “some of them may go a little overzealous. They know this is a bad guy. They know he’s probably got drugs. They’ve seen him around.” [10] Consider, for example, the following attorney’s detailed and animated description of drug arrests by police officers lacking probable cause: There’s not one legitimate marijuana bust... There’s not one fucking legitimate bust. There’s not one fucking legitimate marijuana bust. Not one. Not one of them I do. You know why? Because they see this spot there, right? [The cops] close it down. They close that spot down in one day. This is life! They close that spot down. But [the drug dealers are] making money, so the next day that spot’s up again. They can’t stop those motherfuckers. Because of the money involved. They just put a new person out there with marijuana. They don’t give a damn about it. Nobody gives a fuck! But, they can’t stop that spot, so they sit outside that spot and [the cops say], “Fuck it, we are going to make money from this spot! We can’t bring the big guys down, we are going to make money all the time on this like crazy.” They stand outside that spot

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and they see [some guy] walk by. They stop him. Bam! Get him! Of course, he’s got marijuana in his pocket. Nobody asks how the fuck it gets in his pocket. They got no probable cause here! Then another guy goes by. Now three people. Everybody’s got marijuana! Four, five. Boom! Now they got five arrests. Fuck it, let’s go process these. Let’s go. Now they come back to the police station, five arrests for marijuana. None of them fucking cases are legitimate to begin with. There ain’t no such thing as a fucking legitimate marijuana case here, unless they say they caught the guy outside in public view smoking. Everyone who’s got a bag in his pocket just come off from a spot. Same thing they do with the other drug cases… They’re all illegal. All of them. Nobody does anything about that. That’s all bullshit. That’s all bullshit. Do you know how many of those you see? Ten a day! Fifteen a day! All of them are fucking illegal! I feel nothing wrong getting off the guilty guy. Because there are so many innocent people who wind up in jail. And I don’t mean they’re totally innocent because the fucking guys are obviously doing drugs. But, they don’t got them right! The cops see them as bad people, and that’s sick! “Fuck them! Fuck their rights!” [33] Another example of “overzealous” police work, according to one defender, occurs when officers conduct an unjustified search and then falsely claim after arrest that the suspect gave consent: Even if the person had the drugs, they’re just walking down the street and the cop comes up to them and searches them. And the cop puts it in his police report that he asked if he could search and the guy said yes. And they only believe the cop. And they don’t believe the client when he says, “No, I didn’t give him permission to search.” And sometimes, they don’t even ask. They just come up, throw them against the wall and search them. [29] An additional tactic used to disguise illegal police activity is what another defender refers to as “the plain view bullshit.” [48] According to several attorneys, the police often find illegal drugs or weapons as a result of an unlawful search. After the arrest, it is alleged, the police will often lie and insist that the contraband was spotted in plain view:

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Public Defenders Well, it might be a case where there’s a guy who they strongly believe is a dealer, but they get impatient. And they can’t wait until they have a case, so they pull him over for no reason, and say “Whoa, we found a pile of coke on his seat in plain view.” No. A moron wouldn’t drive around with coke in plain view. Whenever you hear a cop say, “I saw it in plain view,” that’s a lie. Plain view is horseshit. It’s a buzzword for, “I’m making this up because I don’t have a case.” So, in that case you’ve got a guy who is probably committing crimes in the past. They want him off the street, but in this particular case, they’ve got no evidence. You can understand their motivations, but they’re really breaking the law. [46] You could read literally thousands of published cases where the officer says he stopped the car and then saw the butt of end of the gun protruding from underneath the seat. Now, if that butt end of the gun is not protruding, the gun is not in plain view, he can’t get the person out to conduct the search. Do you think people put the gun under the seat so the butt end sticks out? To me, I just laugh about it, because it’s so absurd. Yet, every session of the court, you can read another opinion that says, “When the officer stopped the vehicle, he noticed the butt end of the gun protruding from underneath the seat. He had probable cause based on plain view.” There is no doubt in my mind that gun was not sticking out from underneath the seat in the majority of those cases. Did they have a gun in the car? Yes. Was the search constitutional? Absolutely not. But to get the gun in, because the ends justify the means, [they] will say the butt end of the gun was sticking out from underneath the seat of the car. That should not be done! I am sorry. The law says to the contrary. And that gun was not being used against the officer. And it was under the seat, and as such, you shouldn’t lie about it. But they do. [35]

A final example is notable because it describes the evolution of one defender’s thought process with regard to police misbehavior and the realities of urban crime: PD: At least the undercover cops that we’re dealing with, there’s a serious power attitude. And I don’t know if it comes from knowing they’re like, doing good, stopping drugs, or if it’s- I have many clients, most of them are young, most of them are African-American, maybe one or two are white, who

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have said to me, “I’m just standing there minding my business and this cop comes up and says, ‘let me see your pocket.’” Now, the first time I heard it, I was outraged. The third time I heard it, I thought, “Gee, that’s a good one.” Now I believe this kid is a punk and this cop is overstepping the line. And a cop will come up and say, “Let me see your pockets,” and the kid will say, “Look, you pig!” I think, so what? MW: Did he have stuff in his pockets? PD: Probably. [45] The following public defenders- one from each office- express remarkably similar complaints about the police preying on the vulnerabilities of drug addicts in order to secure arrests they likely would not otherwise obtain. While such instances appear to involve technically guilty clients for whom a defense of entrapment is unavailable, these defenders nevertheless believe that this sort of police behavior is grossly unfair; the implication is that clients like this occupy some murky moral position closer to innocence than guilt: If this cop is lying, and I know he’s lying, and he’s using my client as a pawn, well, Goddamn it, I’m going to do something about it. I had a client who was arrested for selling drugs. And I met her and she was probably about 80 pounds, maybe five feet tall. You could see her breastbone. She was so addicted to drugs. The record consisted of prostitution, prostitution, possession of drugs, misdemeanor. You know, just classic. And what she told me was sort of what I suspected anyway- maybe it’s because I’m a little jaded, but it appeared as though the police stopped her, asked her, “Where could I find some drugs? Hey, you want to party?” “Yeah, let’s party.” “Okay, go to that house and go get us some drugs.” So, she went there and there weren’t any drugs there. So they said, “Okay, go over there.” So she did and brought them back and they busted her for selling. That’s crazy- that’s what I think… And I sat down here talking about it, and said this is crazy, and I sort of put up this front and just said [to the cop], “What are you, crazy?” And then I turned to the cop and I started yelling at the cop, and said, “You’re a coward! If you want to stop drug sales, go after the dealers!” Tell a woman that you want to go party, and then she gets you a dimebag of cocaine? You know- get a new job! [45]

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Public Defenders I’ve seen a hundred drug sweeps. Guys who get charged up, but they’re just at the spot. Girls too. Undercover comes over to [her], makes sure she’s a junkie, says, “Can you buy me some drugs?” This girl’s not selling no fucking drugs. This is not a drug dealer. This is one of the things that piss me off. This really pisses me off. She’s not a drug dealer. She is a drug-gie. But as far as the cops are concerned, she is a bad person. [The cops] get her to go to the local crack spot and buy for them, because they couldn’t buy when they attempted to buy, because [the dealers] made them out. But some chick who’s all fucked up and drugged up buys for them. And then she becomes a seller of drugs. They lock her up and then she faces time on a bullshit arrest. For those people, everyone I get off, I don’t care. It don’t bother me at all. For the ones that shouldn’t be there. And that happens often. I’ve seen a hundred of those. I’ve got to help them… That’s bullshit… That ain’t right. That ain’t right. [33] I think it’s just that [the cops] can justify their existence by conducting an investigation where they know they can score crack very easily with what I call- they’re not dealers but they’re users- and they sell to support their habit. They know they’re selling $2 worth of cocaine and they’re getting $20 for it. It’s easy to do. So, they go, they buy from 25 people, they round them all up, and they get their headlines. It’s much more difficult to move into a white middle class yuppie bar, establish yourself and make buys [where] I know [drugs] are going on. [21]

Perhaps even more intriguing than all this is the number of defenders who assert that sometimes their clients are both legally innocent and factually innocent. There are cases, in other words, that involve more than unlawful police behavior. Many of their clients, these defenders maintain, were not, in fact, committing a crime. Rather, these defendants were entirely innocent and arrested without reason. Consider the comments of one public defender: It happens enough to believe [my clients] when [they say] it happens. And I don’t think I’m just being gullible in believing my clients. Although I do think that a couple of my clients are probably not telling the truth. But I’ve had clients who’ve never been arrested before who come in, they’re all of a sudden, “Yeah, you know, I was standing there and they were

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arresting my little brother and I went up to them and asked them why and before I knew it they were beating the crap out of me.” And then they’d bring witnesses who say, “The kid was doing nothing. He wanted to ask why they were arresting his brother and they beat him up and all of a sudden, he’s being arrested.” So you do get cases like that every now and then. [27] Although no one else repeated the allegation that follows, one lawyer even intimates that the police have been known to plant evidence: MW: So you’re saying that, say, in a lot of these drug possession cases, very often these guys are not guilty. It’s all made up? PD: Yeah. I’ve had many cases where the guy didn’t have any drugs. [My client will say] “I don’t know where they came from, but I didn’t have them.” [29] Several of those interviewed also agreed with the public defender who said of the police, “sometimes they arrest [first] and ask questions later” [15]. With some arrests, another attorney argued, “the police have just been lazy and arrested whoever they could arrest, the easiest,” fault notwithstanding. [10] In such situations, it is asserted that when responding to calls for service, rather than attempting to determine what actually happened, the police instead arrest everybody at the scene, including those who are innocent and should be left alone: I mean, I can’t tell you how many times I have seen cases come through where the cops arrest rather than take the time to really do some investigation, to see who’s at fault. They just arrest everyone in the room, and they don’t care! The way that the police officers are promoted is based on the number of arrests, not the number of convictions. So the more people they arrest, the better their stats are. That’s just how the police department works. You can investigate that. So, what we have is people who are being wrongfully arrested. [34] Recently we’ve had a wealth, like, it’s just marijuana arrests, right? And coming through, I don’t know, I think most of my clients basically tell me the truth. Like a lot of them are saying, “Yes, I was with people and they were smoking, but I

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Public Defenders wasn’t smoking and they hauled us all in.” And I tend to believe that. [20] When I see a good cop, it’s the way they handle a situation. Sometimes you don’t have to let a situation get out of hand. You can talk to people- “Okay, calm down. Let’s find out what really happened here.” Instead of just rounding up everyone that you see involved and arresting everyone. I mean, they do that. They’ll go into a situation, and see a fight [and say], “Okay, we’re arresting everyone.” Meanwhile, there’s two people maybe that are completely innocent and are the victims in a situation, but you arrested everybody. [25]

Indiscriminate arrests of this sort, several public defenders maintain, often occur during narcotics investigations. To be sure, one small town lawyer stated that most low-level drug arrests were executed so well that they were practically impossible to defend against. But in the remarks that follow, defenders argue that many of their clients have done nothing wrong and are arrested simply for being at the wrong place at the wrong time. Despite the lack of probable cause to arrest, it is further alleged, the police often claim otherwise after the fact: When I was doing all of these cases, I started to develop an understanding for how the police do these [drug] cases. And I concluded that they just sort of arrested everybody on the street and then made up the facts later. They would go out and arrest eight or nine people, and they would all come back in the paddy wagon or whatever you want to call it, and the police would sit down in the police station and sort out who did what and who had what drugs and what happened in what case and they would do their paperwork…. And I started exploring and cross-examining cops at these trials about what happened… And I started developing a sense that they really just made up all of the facts in these cases afterwards, by and large. Because I would have client after client saying, “I was walking down the street, and I got arrested in a sweep.” And you know, one or two or three or 10 or 15 or 20 guys you can say, well, they’re a bunch of drug dealers on the street and they’re just lying, but you know, when you hear this four or five or six hundred times, over several years, you start to realize this is what really goes on on the street. [36]

Anti-Police Motivations Cops will wait at a building, an apartment building, where maybe drugs are being used or sold and they’ll stop every young kid coming out of there. Maybe one kid out of five is going to have drugs. It’s a bad search, but in their attempt to stop the drug trade, they’ll just start searching at random or indiscriminately. [2] PD: I got an acquittal in that case. And I owe that acquittal to the cops, because they lied about stuff that wasn’t important, which is what cops do all the time. MW: All the time? PD: All the time. The single biggest group of liars in the system- in a system full of liars- are narcotics cops. Nobody lies more than narcotics cops. Narcotics cops lie the way you and I breathe… MW: Do regular cops lie as much as narcotics cops? PD: Not as much. It’s different. Narcotics cops, it’s like a business. It’s an amazing thing what they do. It’s just an assembly line. I’ve tried enough cases to know the process. The ones who do this buy-and-bust, they get together every morning in the police station or wherever they’re headquartered, they sit down and decide the sites they’re going to go to, they distribute the pre-recorded buy money, they get into a van and they go to a site. They see if they can arrest a few people. And whoever they arrest, they have to put in the van. And then they move to another site, they arrest another bunch of people. When the van is full, they go back to their headquarters, they write up all their paperwork, they’re done for the day, and the next day they go out and do the same thing. And I just have heard too many times that they pick up everybody at a particular spot, they pick up whoever they can find. [28] The political pressure to stop the drug trade really causes a lot of breaches of people’s rights. They shake down a lot of our clients just because they happen to be standing on the corner with a couple of other guys. They bust into their homes. They claim that there are all these hand-to-hand sales that they’re always shaking these guys down for. I mean, some of them are going to get caught doing it. There’s no doubt about that. But, a lot of it is they’re really coming after them. And they’re

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Public Defenders sort of disregarding them as people. And it’s something I’d like to help stop. [23]

RACISM AND RACIAL PROFILING Many public defenders also accuse the police of some manner of racial bias. One, for instance, urges that police officers “have to have more sensitivity training, more diversity training,” [25] while another states “I really believe that, more likely than not, if you’re black, you’re going to eventually get arrested.” [27] In particular, there are attorneys who claim that the police are more active in minority communities than they are in white neighborhoods. As one defender protests, “the problem is that it becomes selective enforcement. Certain areas get more enforcement than others.” [44] Another states: The biggest problem I have with [drug] investigations is… they’re always conducted in poor neighborhoods, they’re always for the most part dealing with minorities, and I’ve said this often and as loudly as I can, it’s amazing how no white middle class kids use drugs. It’s amazing how no white middle class kids sell drugs. Doesn’t happen. I can’t tell you the last time there was an investigation that goes into what might be termed yuppie bars, and [the police do] an investigation there… I mean, I’m not saying that they shouldn’t be doing these types of investigations [in minority neighborhoods], but don’t do them to the exclusion of all else, which is what has historically occurred in this area. I mean, I can’t tell you the last time a white middle class person got nailed on a drug charge. [21] In what might be thought of as a particularly conspicuous version of the allegation that quite a few of their clients are not guilty, moreover, many defenders contend that police officers routinely engage in “racial profiling.” Too often, they argue, police officers abuse their authority and mistreat black and Hispanic people in a way that would never be acceptable for whites. Some, these defenders assert, have in fact committed an offense; still, as one attorney put it, “the results justify their actions, but I don’t like their actions.” [47] Other clients are completely innocent. Either way, the constitutional rights of minority clients are repeatedly violated and, several attorneys once again complain, officers frequently invent a legal justification after the fact because the ends justify the means:

Anti-Police Motivations Well, I mean I think this whole talk about racial profiling is accurate. The reason that most of the arrests have been in black or Hispanic neighborhoods is probably because that’s where most of the crime is taking place. But, by the same token, just because most of the crime is taking place there doesn’t mean that cops can operate with that mentality and just assume that this 17-year-old black kid that I see on the street all the time, he’s got dreads and he hangs out with these people, and I’m going to come hassle him because he’s probably up to no good. It happens all the time. Sometimes, they are up to no good. But just because they may be up to no good doesn’t mean [that the cops] have the right to hassle them. It’s not a legally justified stop. It happens all the time. And the prosecutor’s office will further that unjustifiable intrusion, which may have borne some fruit. You’ve heard the expression, “the fruit of the poisonous tree.” And a lot of people say, once again, “the ends justify the means.” And I don’t buy that. I don’t buy that. [15] I truly believe that power breeds corruption, and when the police get away with this stuff…, they are emboldened. I mean, I just see it every day. Every single day in my work. In [this city]…, you can’t have four young black males drive around in an Acura, or some late-model car, without being stopped by the police. So they stop these guys and harass them and maybe they find something and maybe they don’t find something. If they don’t find something, they let them go, but if they do find something, then it’s a matter of coming up with a means to justify the search. And they’re very adept at doing that and they know that the judges will accept whatever they say. [36] PD: If you’re black in this country, it’s a rare person who, if it hasn’t happened to them, doesn’t know someone who hasn’t been roughed up by the cops. I would bet that even the black prosecutors over there- they know that shit goes down. I don’t have any black friends who never have been convicted of anything, who have never been stopped and searched illegally, or pulled over- obviously without having done anything wrong- by the cops. And these are things that simply don’t happen to white people. They simply don’t. And they definitely don’t happen out in suburbia. You don’t see the

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Public Defenders types of charges that happen in the city happening out in suburbia because white folks would never stand for it, and they would have their high-priced attorneys making an outcry over it, it would be on the evening news and people would be outraged and it would stop. But the same thing is allowed to happen in the city and it’s boiling up. I think it’s not out of the realm of possibility that [the riots that] happened in Cincinnati [after a police shooting of an unarmed African-American] could happen here. If another young black person gets killed by the cops, it’s going to happen here, again. It’s going to happen. People will be in the streets. MW: What about the black cops? PD: Well, my two cents is, if you’re wearing blue, you’re white. You represent the white establishment, you’re protecting white interests. The contacts I’ve had with nonwhite cops, I don’t know if they’re more corrupt or less corrupt or what, but they seem to be just as much lying sacks of shit as the other cops. [29] PD: I believe everything that goes on in [with] these profile stops. Because I’ve never driven down [a major interstate highway in the region] where I didn’t see one car that was pulled over with blacks standing outside and troopers going through trunks and cars. It goes on all the time. And it goes on here. And it’s not just blacks. There’s also a thing called “driving while young.” I have kids who tell me all the time, “I was stopped for no reason whatsoever.” They’re stopped because they’re young. And the cops figure they’re going to find something in that. MW: Do they? PD: Sometimes. But they don’t know that. The cop doesn’t know that when he pulls them over. We still have a Bill of Rights in this country. They pull them over, they scare the shit out of them, get them out of the car, ask them if they can search the car. The kids usually say yes, because they’re petrified. And they start ripping the car apart. And, yeah, maybe they’re going to find a roach under the front seat. Or maybe they’re going to find a little bag of cocaine on the front seat. Okay. The kid’s wrong for having it. But your Mom and Dad told you two wrongs don’t make a right. They have no right to stop them. The police nowadays, the reasons they give for stopping are outrageous. I mean, I’ve had stories told where guys get stopped because their taillight was out. And I

Anti-Police Motivations say to the kid, “Was your taillight out?” “Well,” [they tell me], “my taillight wasn’t out when I left. But, you know, my taillight is out now and it’s cracked.” The inference being the cop kicked it. I don’t know if it happened or not. But, again, I see enough of it to at least have my suspicions. Not all cops. There’s a lot of good cops out there who don’t do this kind of stuff. I don’t mean to broad brush it. You’re asking me specific questions about what I see, and I see this crap done a lot. [31] The police know better at this point to really interfere with the rights of a young white person driving. If I get pulled over for speeding, they’re not going to take me out of my car. They’re not going to handcuff me. They’re not going to search my car. They’re not going to pat me down. They’re not going to do any of those things. I’m a white person. I’m dressed nicely. I’ve got a nice car. I’m dressed nice. My registration, everything is in order. Nothing is going to happen to me. All the time, we get cases, black males being taken out of the car and patted down. And that’s okay! [10] PD: The cops see black kids, and they think that’s probable cause automatically. They think that’s okay to stop and search somebody. MW: So you’re talking about racial profiling, finding someone with absolutely no probable cause, no evidence, no nothing and stopping them. PD: Yes. Absolutely. Absolutely… MW: So you’re saying that there are a lot of innocent kids caught up in the system. Factually and legally. PD: Yes. Yes. Absolutely. For every ten kids that they stop, nine will be let go, but they stigmatize those kids. Because you’re taking a young 15, 16, 17-year-old black kid, you search them, you subject them to indignities, and the one kid that has marijuana or some drug on him, you arrest him and put him through the system. It seems to me that the indignities of the arrest and going through the system are a lot worse than the crime. In that sense, maybe they should be rethinking the drug laws, but that’s something else. But I think of racial profiling in that aspect…. I think cops just stop kids indiscriminately and search. And hope that they’re going to

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Public Defenders find something. And sometimes they do. And that seems to justify the search. But you can’t do that. [2] Well, for example, if you go into court right now, any of the courts around here, you’ll find that like 95% of the defendants are black. Part of it is because of their economic situation. More of the poor around here are black. But part of it in certain places, it’s known that you don’t want to be black. You know, “driving while black” is an expression that applies to a lot of cases. A guy is driving while black. And it’s alive and well [here]. [38] Especially for the population that we represent- they, more than anyone, need to have someone fight for them because when you’re taking someone who’s a minority, especially in this community… young males- black and Hispanic. They’re suspect just by being who they are and just by existing. And so they’re always in that place where they’re suspect, and it’s horrible. And they have to be that much more careful and cautious about anything they say or do, [about] the same thing that I can get away with or one of my peers can get away with… who grew up white, middle class. [44] PD: I really believe that there’s still racism. I really believe that there’s still a lot of police- it’s not corruption- but there’s a lot of police abuses that still go on with people who are poor, with people who can’t fight. You know, there are things that happen to our clients that would never happen if you’re white. I see white people [doing insignificant, but technically illegal things] right in front of police officers, and I would say, “Well, why the hell aren’t they arrested?” And meanwhile, I get clients here who were arrested [for the same thing] and then they happen to have a little knife on them. It could be a Swiss Army Knife. And they’re charged with criminal possession of a weapon. I mean, they’re misdemeanors, but still. It just makes me wonder about Joe Shmo [from a white neighborhood] who’s [doing that] if he happens to have a knife on him. He’s not going to get stopped. MW: Really? PD: Yeah. MW: Why do you say that?

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PD: Because if you’re a black, young, male, I think cops are more suspicious of you. And I think you’re more of a target. And I think cops just believe that if they make an arrest, they’ll find something. [27] PD: I’m not saying [the police] go out of their way to necessarily set people up- they’re just minding their own business walking down the street- but I think that in terms of violating their fundamental rights, that you and I and everyone has, I’d say they probably do do that, in certain areas of town more, to certain defendants more, because they can get away with it. MW: In what areas of town? PD: I’d say the inner city. Where crime and drugs run rampant. Those are the areas that are targeted for the… drug task force and all the undercover agents and all that. And I think issues like suppression and issues like search and seizure kind of fall by the wayside. [39] Once more, there emerges no real consensus about how typical such behavior is. Most defenders do not declare the relentless abuse of minorities to be an everyday occurrence with the police. Many state that such behavior is not typical. Others, however, will suggest that there are some occasions when this sort of thing happens, or that it happens a lot. Whatever its frequency, however, many public defenders insist that racial profiling is a significant social problem. OVERCHARGING AND PETTY ARRESTS Several public defenders claim that police officers deliberately and habitually overcharge their clients in order to set up a plea to the less serious offense the crime is really worth. As one put it, “sometimes, [clients are] guilty of something, just not what the police are charging them with. The police, not to say anything about them, but they’ve been known to overcharge people for certain things.” [5] Attributing this to a lack of “sophistication” on the part of many officers, another lawyer reasons that “these guys are not smart enough to determine what actually happened. Hence, they overcharge.” [33] Such a practice, it is further maintained, involves making legal judgments about what an eventual disposition ought to be, something that simply is not the function of the police:

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Public Defenders I don’t think the penal law contemplates what the police are going to charge when they make an arrest. I know the police are instructed at the academy to overcharge so that the defendants get what they should on a plea bargain. But why should we as citizens be taken to the bar because the police have some idea of the punishment they should get? The police aren’t supposed to adjudicate cases. They have a much different function… The police have a job and it’s not to judge. It’s Machiavellian in a way. The more latitude they’re given, the more power they’ll take. [14] You give them an inch, they’ll take a mile. That’s frustrating. And that’s fairly normal. Cops kind of overcharge. Generally, the prosecutors will make a reduction, but depending on how much they overcharge, they’ll only give us a reduction down so far because on the books, it looks bad. [10] PD: I’d say [of the] clients that I represent every year, I’d say most people are guilty but it really is a good percentage, maybe 10 to 20% who are not guilty of anything, and then I’d say there’s more like 30 or 40% who are not guilty as charged, but are guilty of something less and are overcharged. And I’d also say that that’s a deliberate police and prosecution tactic. You know, you overcharge someone so that they can plead down to something, whereas if you actually charged them with what they did in the first place then they would plead down to something less. MW: Is that inappropriate? PD: Is it inappropriate? If my car is worth $1000, do I ask you to buy it for $1500 and then bargain me down to $1000? That’s really it. I guess it’s a matter of opinion as to what’s scrupulous and what’s not scrupulous. I guess it doesn’t matter so much if you’re selling a car, but it matters a little more when you’re talking about people’s liberties. So, yeah, it’s not appropriate. [36] PD: [Criminal defendants] are not all bad. They don’t all need records. Try to talk to them first. And don’t throw the book at them all the time. Be a little lenient. MW: Is that what they do, in general, the police? PD: Throw the book at them? A lot of times. They charge them vertically, instead of horizontally. They’ll charge them

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with [every degree of robbery] when it was probably only [the least serious form]. And I think that’s unfair. MW: And why do they do that? PD: I don’t know. Their statistics or something. I don’t know. That’s part of our arguments all the time. If anything, it’s just a simple trespass. Not burglary. If anything, it’s just a possession. Not a sale. That’s part of our argument. That [our clients] are overcharged. I don’t know if it’s police training or what. But that’s what happens. [8] This defender also addresses the issue from a somewhat different perspective, arguing that police officers arrest people for crimes they might have technically committed, but which are frivolous or which might more fairly be handled informally: MW: So you say that [the police] arrested everybody. What do you mean by that? PD: Like when getting a ticket. Say the speed limit is 65 and you’re going 67. And you might say, “Oh, I thought it was on 65.” [And the cop says], “No, it was 67 and the speed limit is 65. I have to give you a ticket.” Now, does he have to give you a ticket? No. He doesn’t have to. He could say, “Keep it under 65” and let you go. You haven’t harmed anyone. So he can let you go. They don’t do that. They don’t look at situations. Or say [your client] is in a store. And he picks up some items in the store but doesn’t leave the store. He clearly has the intent to steal them but gets stopped before he exits the store. And there are items in that client’s pocket. Instead of saying, “Listen, put those items back and don’t come back in the store,” they arrest you for burglary for it. And that’s not necessary all the time, because you didn’t really complete the crime. Maybe it might have been [a lesser crime] or something like that. But instead of charging you with [the lesser crime], they charge you with larceny or burglary or something like that. And that’s not necessary. [8] Another attorney agrees that the police arrest many clients for petty and inconsequential offenses and in the remarks that follow ascribes this situation to the officer’s need to meet departmental arrest quotas, a point also made by defenders [8, 34] quoted above:

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Public Defenders MW: Why do [the police arrest for a particularly petty offense]? PD: Because according to the police department, it’s a crime. The statute says it’s a crime... [So], you’re in. MW: There’s a lot of statutes they don’t enforce. PD: That’s right. MW: But why do they enforce these? PD: Are you asking me if they have quotas for arrests? I believe they do. And they get credit for an arrest on their record. They get promoted on the amount of activity they do. [30]

POLICE EXCESS: ARROGANCE, INTIMIDATION, BRUTALITY AND CORRUPTION There are a number of defenders who believe that police officers can be contemptuous and overbearing; too many, they suggest, are fixated with their own authority. Several of those interviewed for this study, for example, account for police misbehavior by describing the sorts of people they believe are attracted to law enforcement; one simply stated that “some of them are arrogant.” [31] To be sure, this is not their only explanation for police wrongdoing. Still, several attorneys pointed to the “power trip” [15, 18] and “serious power attitude” [45] of many officers. One lawyer, for instance, after being asked why police officers acted unlawfully proposed a number of more benign explanations before asserting that “now I suspect that some of them go into the job in the first place because they’re bullies. And this is an area where they’re allowed to go in and be bullies, and they enjoy it. And I never thought that before, either.” [10] Another likewise suggested that “a lot of them are bullies... They take it out on people. Some of them are just so enthralled with themselves. An arrogance.” [47] Consider in addition these thoughts: Not every police officer in every situation acts constitutionally. [But] the reality of the situation is that it’s unnecessary to act unconstitutionally because you can get what you want under the Constitution. A lot of this just has to do with work habits: “We’re the police and, by definition, if we do it, it must be right.” [4] Thinking that criminal defendants are less than human is the sort of superior attitude that two defenders from different offices elaborated upon when recounting strikingly similar stories about middle class people arrested for the first time:

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It never ceases to amaze me that people who spend their entire lives condemning [criminal defendants] and condemning defense attorneys, when they find themselves accused of something, now all of a sudden, they turn around and it’s like, “I can’t believe the police did this to me, I can’t believe this happened, I can’t believe that they treated me this way.” That’s how they treat everyone! Why do you think you’re so special? So, I think that people who are drawn to defense work are put off by that kind of mentality and are in a position where they can see the people aren’t fundamentally different from each other and they can see the humanity, they can humanize their clients. [4] I think that, really, the work that we do is really all about keeping the police honest. Because anyone who’s a public defender, every one of their relatives at Thanksgiving dinner or every family function say [in a singsong voice], “How can you defend those people? You know they’re guilty. They are criminals and the dregs of the earth…” [I know people who are] fairly conservative politically and I’m fighting with them all the time about this stuff. And they really don’t get it. Getting arrested, getting charged with a crime, that doesn’t happen to real people, to good people. That only happens to them. Whether them means black people or poor people or whoever, I don’t know. And then they know somebody that gets charged with some crime they didn’t do and of course they are outraged. And I find that whenever middle-class people have a personal experience with the criminal justice system, they always come away horrified that things can happen the way they happen. My comment is, “That’s what happens to my clients every day.” [36] When asked to explain inner city police misconduct, one public defender explicitly linked this sort of police arrogance with out-and-out physical brutality: MW: Why do the cops [conduct illegal searches in minority communities]? PD: Because they can. MW: Because they’re bullies? PD: Because they can! Because they can get away with it. Because it’s this macho thing that they can go out there and

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Public Defenders it’s their beat. They can do what they want and people have to do what they say or else they’ll take them in, because they’ll be believed. No one will disbelieve them. I mean, if you look at the rates of charges of resisting arrest, they’re going up. And they’re going up off of disorderly conducts, harassments, unlawful possessions of marijuana... And every time one of these arrests take place, people are getting maced, they’re getting beat up, they’re getting bitten by dogs. And when it happens in the city, people are turning out when they’re seeing it. And the next thing you know, there’s a crowd gathering and then they’re arresting more people for disorderly conduct because they’re out asking the cops what’s going on. And the cops are so used to getting away with it without having anyone questioning what they’re doing, that tensions are just going up, up, up, up. And one of these days, someone’s going to get killed. And if it’s another young black kid, unarmed, getting killed, I think [the riots that] happened in Cincinnati [after a police shooting of an unarmed AfricanAmerican] could happen here. I think it could happen in just about any city at any time. It happened in Cincinnati and I think it could happen here. [29]

Indeed, physical abuse and police brutality are things that greatly trouble a number of public defenders. One attorney interviewed for this study, for instance, made mention of “cop beatings” and complained that “cops are committing atrocities all the time.” [46] Other examples include the defender active in outside politics who reported spending free time passing out leaflets protesting police brutality, [48] the lawyer with a client that was an “older gentleman” who “just cried” after being beaten by the police with a flashlight [25] and another with a client whose chair was kicked out from under him during a police interrogation [31]. In the most glaring example, one defender discussed police officers who “take guys in the back room and use a rubber hose on them.” [47] A few attorneys also agree with the public defender who maintains that when arrestees object to glaringly improper police behavior, if “that person starts protesting, then they’re getting charged with resisting arrest.” [29] This is yet another offense defenders say innocent clients are falsely charged with: We could consume like a day talking about cops. I could just tell you stories that are outrageous. It’s to the point now where we laugh about it. You almost have to or you’ll go

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nuts. Because it’s so obvious. You see a cop charge someone with resisting arrest? That’s a bullshit arrest to begin with. That’s the way it is. Whenever they arrest you for no reason, and you don’t like it, they slap a resisting arrest on you. Because they don’t want to get sued. So, they put you on the defensive with a resisting arrest charge. [46] I have had a couple of clients who have mouthed off to police officers. Like say, for example, a client gets arrested by a plain-clothes police officer, and they don’t know at the time. So they’ll mouth off to the police officer and before you know it, they’re being pummeled and then all of a sudden, the tables are turned and they’re being charged with resisting arrest... So, you get these kids who mouth off to a police officer- and maybe they shouldn’t, maybe they should have more respectand to cover their asses, the police officers say, “Well, they were resisting arrest, so we had to use extra force to subdue them.” [27] In a charge that does not quite amount to outright brutality, several defenders contend that too many police officers are immoderate or unrestrained in their behavior. According to one, “everyone knows kids from their grammar school who went on to become police officers, and in my experience it was these kids that were the reckless ones. And now you have these people making very important decisions.” [34] Another holds that officers are often “verbally aggressive” [27]; an attorney from a different office suggests that belligerent vernacular may well represent an excessively punitive disposition: “Cops, when they get somebody in custody, think that they now have John Dillinger under arrest. Their favorite word- and I know that cops use iteverybody’s a ‘scumbag.’ That’s the terminology they use: ‘You’re a scumbag!’ They’re going to throw you away!” [31] This defender also calls attention to another example of police excess when he accuses the police of unfairly trying to intimidate arrestees; in the subsequent exchange, a second attorney also raises the same subject: MW: How about cops? During the period of time that they are dealing with defendants, are they fair with them? PD: Before I get involved? MW: At any point in the process. PD: They’re not fair with them. MW: They’re not?

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Public Defenders PD: They’re not fair with them. MW: In what ways? PD: Well, the intimidation factor. You have to understand, I’m not there to see this. What I find is what’s reported to me by my clients several days later, after the incident occurs. But when you keep hearing the same kind of stories about the same cop, time and time again, you know that your clients are telling you the truth. [31] PD: Sometimes, the experience I’ve had, or the feedback I’ve gotten from my clients is the cops- I don’t want to say were abusive- but were intimidating, sometimes they were overaggressive. Sometimes- “threatening” is a strong word. I don’t know if I would say threatening. But intimidating. MW: Should they be less intimidating, or is that a function of their job? In your view, are they approaching this with good intentions? PD: Some yes, some no. Like everything else. I don’t want to say good cop, bad cop. But I think some of them, the way they do their job, I don’t particularly agree with. Some of them I think do push the outer edge of the envelope. [5]

A number of public defenders also offered observations about police corruption. Two suggested that “extortion” [29, 46] was an issue; one elaborated on the problem: I’ve heard a lot of stories about shakedowns and things like that. It’s not unheard of. Catch some kids on the street, take some money, shaking down drug dealers. Not arresting them, maybe. But shaking them down, taking their drugs and their money. If they want to try to fuck with someone, they can. I mean, it’s easy enough for a cop to come up with cash and money on the street that they can easily plant on someone else that they don’t like. Because you can easily shake someone down and take it away from them. What’s that person going to do? “Oh, my drug money was robbed from me by the cops.” No one is going to try to make that report. But these things happen. Especially in the [black] section. [29] This attorney is also troubled by what is perceived to be an institutional practice of routinely covering up instances of police misconduct by protective fellow officers and sympathetic civilian review boards:

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Well, see, the thing is, it’s bigger than just what the individual cop is doing. That’s why I think that all cops are bad. Now, it doesn’t matter whether the cop is on the take. It doesn’t matter whether the cop is shaking people down. The system of our police enforcement does not have justification. I don’t think it has legitimate justification. I don’t think it’s effective in what we’re told it’s supposed to be doing. And so, it’s the system itself that’s wrong. Now, there are maybe cops that try to act honestly within what you would call a corrupt system, but even amongst the good cops, meaning cops that don’t do the shit themselves, I don’t subscribe to the bad apple theory. The blue wall of silence. Even if the cop doesn’t do anything wrong themselves, they’re never going to blow another cop in for stuff they did do. Never. And as far as I’m concerned that sort of conduct is just as bad as the cop who did the conduct himself. Everybody knows that the people that they put on these civilian review boards are just yes-men do-nothings. Nothing ever happens on the civilian review boards. If they were serious about stopping police misconduct, there would be a special prosecutor with his own special police force, if you will, investigative force, that does their own independent investigations. But even then, they’re going to run into problems, because cops will not testify against other cops. It’s simply that way. It’s a matter of safety. They just won’t do it. And so, I don’t find much justification in any cops. [29] On the same subject, another defender noted that “of course, you have that whole thing with the blue line of secrecy. That’s in play here as well as anywhere else.” [46] A third pointed out that “if there’s a complaint lodged against the police, who looks into it? Internal Affairs. Additional police officers. It does me no good.” [39] This defender goes on to argue that police cover-ups make public defense work particularly worthwhile: The typical dirty cop theory just infuriates me, where it’s almost like a military unit where they back each other up. And they’re tough to crack. One bad apple spoils the whole bunch theory. And for that reason more so, I think that someone has to be there for the defendant. [39] It again bears repeating that most public defenders emphasize that there are many well-mannered and law-abiding police officers. It is

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doubtful that many of the attorneys taking part in this study believe that local police agencies are completely inundated with patently corrupt officers. Similarly, few of these lawyers seem to think physical brutality is the norm in their jurisdiction. Rather, it appears likely that most would agree with the defender who said, “I don’t know that it’s typical, but it happens more than it should. And when I do see it, it’s very upsetting.” [25] Many public defenders, in sum, believe that although it may not necessarily happen all the time, police brutality is too often a problem. Quite a few, however, are of the view that an arrogant demeanor and a tendency toward undisciplined behavior is too often characteristic of the police. EDUCATION, INTELLIGENCE, AND INSULARITY There are also public defenders who assert that police officers generally are of modest intelligence and have insufficient formal schooling. Believing that this is at the root of much police misconduct, for example, one attorney contends that “you don’t have a real sophisticated police department. The guys don’t have enough education.” [33] Another lawyer asserts that the entrance examination for prospective police officers does a poor job of weeding out those who are intellectually unprepared for policing and recalls reading “an article about a news reporter who went into the academy, [and took] the test, and it was a joke. I mean, it was joke! I don’t think you even have to be of average intelligence to pass that test.” [34] Attributing personal incompatibility to just such an intellectual gap, a third defender declares, “I don’t get along with police officers and anyone who feels they have power over me… I don’t like someone with less intelligence bossing me around.” [24] One final illustration is the attorney who adds to this the view that many officers live a sheltered life and have inadequate experience with people unlike themselves: You’ll always have cops who are under-educated. Basically, the guys that I went to high school with, when all of a sudden they’re 17, they’ve got a degree in metal shop and they’re not good enough to play college football, and so they’re out there and they have to get a job. They figure, “What can I do? I can’t really read. I can’t write. I’ve got no interpersonal skills. I’ve been shoving people around my whole life. Wow- you mean you’re going to pay me 30 grand a year plus overtime? I get to drive around all day? And in 20 years, I get a pension?” It’s just a dream job for someone with no skills. And you get a bunch of guys like that. Who rarely leave their community. The police generally are from where they’re policing, because

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they’ve been doing it since they were [young]. So when you and I went to college, these guys were out being cops. They’re almost ready to retire, some of these guys. It’s the biggest scam going. They never went away to college. They never had to live in a suite where there was maybe a guy from Korea or something. So, they’re just not well-rounded. There’s a lot of inbreeding. All they do is stay amongst themselves. They think the world is out to get them. That’s the greatest irony of all. They’re the greatest threat to the rest of us, if you ask me. And they just stink. They’ve never experienced the real world. They just stay here. They stay among themselves. And they just go hog wild. [46] THE DIFFICULTIES OF POLICING: CYNICISM, FRUSTRATION AND SIMPLE HUMAN FOIBLES Notwithstanding their complaints, many public defenders exhibit sympathy and understanding for police officers and the job they must do. Familiar with the realities of crime and criminals, these attorneys are aware of how taxing such work can be for those on the front line. There are also defenders who view themselves as unappreciated and underpaid and similar police grievances resonate. One attorney, for example, bluntly states that “a lot of [cops] are under a great deal of stress,” [47] while another concedes that “police and law enforcement [in this city] don’t get a lot of respect and it’s very difficult to do that type of work.” [34] Consider, moreover, the following comments: I know a lot of cops, and on the whole I like them. I think that there’s a terrible, terrible amount of frustration, especially in the city environment. Cops don’t get any respect. They don’t give any respect. The situation kind of feeds on itself. You almost don’t know where it started. What came first, the chicken or the egg? Who started with the disrespect? But it just goes from there. I imagine that there are a lot of cops who get started thinking that they’re going to make the community a better place. And in time, they get very frustrated with how they’re unable to do that. [10] I know that they are under a lot of stress. These cops are under stress. There are some mean motherfuckers who are doing real fucking bad things. [33]

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Public Defenders Sometimes- and I think this applies to everybody in the system- there’s cynicism: “Oh, yeah, yeah, yeah. You’re going to tell me this and that. I don’t want to hear what you have to say.” Or, you have a hotheaded defendant…. I mean, cops are people too. And, there are all types of cops. There are good cops out there. There are cops who understand what the average black man or the average Puerto Rican man [in this city] goes through. [15] Here, [cops are] treated like shit. I know a lot of cops very personally and very well. They’re not paid appropriately… You have some cops who are dedicated, great, wonderful cops and they’re not promoted because it’s too much money. [44] I would say in all communities, in my opinion, the police department, they’re doing a difficult job. They’re doing the best with what they’ve got. [40]

Two defenders even go so far as to temper some of their criticisms by noting that in their private lives, their outlook on the police is a bit different than it is for their professional work: I question cops. I question hard. But as people I don’t judge them. As a citizen, I want my cops to be honest and straightforward, so they make a good impact on juries and are telling the truth. But I’ve got wholly different views as citizen versus attorney. [24] I think you need all the pieces, you need law enforcement, you need prosecutors, you need defense attorneys. I don’t have any particular animosity toward the police. If anything, I respect them. I think that police officers are out there risking their lives a lot. I depend on police officers. I’m glad to see police officers in my neighborhood. I’m glad to see them when I’m the victim of a crime. So, I think they’re definitely necessary. [27] A few defenders even attribute the sorts of misconduct described in this section less to malevolent design than to simple human weaknesses. Two lawyers, for example, suggest that police officers lie on the stand because they are forgetful. According to one, “I don’t even think, by the time you get- a year later- to the hearing stage- that they even remember that specific arrest. Unless it’s a real horrible case.

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Even though they say they do, I don’t think so.” [20] Another argues that police officers are often sloppy in their record keeping and think they might hide their carelessness by lying: No one wants to stand up there and be cross-examined by a defense attorney and say, “I don’t remember.” It makes them look foolish. Like, “You know, counsel, I didn’t write it down. I didn’t keep my notes. I don’t know why I didn’t. I just made a mistake. I should have written that down. I’m sorry.” So what they say is, “Oh, yes! Definitely! I know exactly what happened!” They guess sometimes. And that’s just silly. They shouldn’t do that. And it annoys people. It annoys judges when you could tell that they’re making this stuff up- about things that don’t matter! Where most civilian witnesses have a tendency to just say, “I don’t know.” But since they don’t have to testify all the time, maybe they don’t feel the need to pad their story. And, once again, I don’t think they’re padding the story about anything substantial. It’s little things. How fast was he going? I saw him do this. I saw him do that. I’m like, “Come on. Of course you didn’t. What are you doing? It was dark out. You couldn’t see anything. You were three car lengths away in the dark. You couldn’t tell whether he was wearing a seatbelt or not. So just tell me you couldn’t tell whether he was wearing a seatbelt or not. And it makes me challenge everything you’re saying now because it doesn’t make sense. Don’t make that up.” [40] Consider also the public defender who maintains that police work is difficult because “they’re called upon to make very, very difficult judgments in a very, very short space of time.” [47] Along the same lines is this exchange with an appeals lawyer who believes that officers have understandable difficulties translating complicated legal standards to the real life world of police work: MW: You talked a lot about Fourth Amendment issues and how that makes up a certain sizeable proportion of your work. Is this an indication of a lot of shoddy police work? PD: No. Some of it is shoddy police work. But I think also the police don’t know. It’s just difficult for them to determine if they have probable cause or not probable cause. They do the best they can, and then it’s up to the judges to determine whether there’s a violation.

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Public Defenders MW: You say they do the best that they can. PD: Often times. MW: So do you think that for the most part, then, that they’re dealing with arrestees in a fair manner, that even if they’re wrong, their bona fides are there? PD: Yeah. You realize that there’s a Fourth Amendment violation and you deal with it, you acknowledge that it happened, but I think their bona fides are there. [16]

CONCLUSION: PARADOXICAL VIEWS? It is clear that the lawyers interviewed for this study have some rather strong views about the police and their own relationship with law enforcement. It is also interesting that while there are public defenders who acknowledge that police officers have difficult jobs and make mistakes just like everyone else, there is no shortage of harsh and sometimes even withering accusations about their intentions and behavior; in several cases, pronouncements of both sorts were made by the same attorney. A few defenders, in fact, simply had nothing nice to say about the police; one goes so far as to declare that “I think institutionally, they’re an occupying force, essentially.” [48] Another used much the same language to argue that the police are an unwelcome presence that inner city communities would be better off resisting and expelling: I think that people in the community need to organize themselves against the occupation of their community by an armed force. Basically, what’s happening in some parts of the city is you’ve got an occupying army, you’ve got 5-0 rolling down every street harassing people, and it’s getting more and more like that every year, because they’re putting more and more cops out there and they’re giving them more free rein to do what they want to people. And you can see that in just about every city around the country. [29] Both of these attorneys, it should be noted, were known for their radical politics. And with such thoughts in mind, the latter stressed that public defenders provide empowerment for the indigent; giving poor defendants, in other words, the opportunity to stand firm and make a political statement against police abuse: Well, it’s empowering them because it gives them a voice when they don’t have one. It gives them a voice in front of people who have a great deal of power over them. It’s almost

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like it allows them an avenue for resisting what’s being done to them, especially with regard to the drug crimes or crimes where the cops are basically stopping people on the street and searching them and then worrying about what the probable cause will be later. [29] Do the seemingly contradictory statements demonstrate a paradox? It is difficult to say. Criminal defense, of course, involves challenging the legality of all kinds of police behavior; it seems natural, therefore, that there would be a somewhat contentious relationship between public defenders and police officers. And it must be emphasized that although only one defender expressed a markedly positive assessment of the police, many of those taking part in this study noted that in their view, not all cops were bad. Perhaps that is a purely ritualistic qualifier intended to disguise a more obdurate anti-police attitude. On the other hand, it might be a candid proclamation that fairly describes complex views of police work. Some may fall into the first cluster of defenders, as perhaps the following remarks indicate: I told you, my background growing up in the 60s was I didn’t have any family members who were in law enforcement or law for that matter, had no familiarity personally with anyone in law enforcement, and was exposed to cops being called pigs, and they were not good people. They never did what they did for the right reasons. I mean, that’s what my whole take was. That’s really what my belief was. I mean, I’m defending these people, and they’re telling me these stories about what the police did. And I’m going, “Yeah, they’re bad people!” [Laughs] But, in your job, investigating cases, I call the officers to find out their perspective and, you know, lo and behold, they’re not all bad, they’re not all bastards, not all of them lie all of the time. [Laughs] [12] Others may be better described as part of the latter group, as the words of this defender suggest: I don’t know, most cops, I think, are just doing their jobs. So I think they try to do the best with what they’ve got. It’s been fine, [my] relationship [with the police]. Not super-friendly. I might want to give them some advice afterwards, depending on the case. [Laughs] [20]

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In the end, it seems reasonable to conclude that there does not really seem to be much of a contradiction. Although it is probably true that many public defenders honestly do believe that there are good cops, their analysis is substantially similar to those with a more uncompromising anti-police perspective. Indeed, not only does the data corroborate- and elaborate upon- much of what the literature reveals, but comparable things were said, often in vivid detail, by a great number of defenders. And it must be emphasized as well that the bulk of these observations were offered in response to open-ended questions. The differences, then, may be more of tone than substance. On this point, the appeals lawyer who asserted that legal complexities contribute to mistakes by otherwise well-intentioned police comes to mind: despite a much more measured assessment than many other respondents, even this defender declared that one of the things he missed most about trial work was the enjoyment derived from crossexamining police officers and exposing them on the witness stand as dishonest. [16]

_________________________ ENDNOTES 1 Dershowitz (1982) also states that “all prosecutors, judges and defense attorneys are aware” of this state of affairs (p. xxii). 2 This man, in fact, died. 3 See pages 26-28.

CHAPTER 10

Anti-Prosecutor Motivations Critical Motivations, Part III

Despite allegations that they are cooperative “double agents” to whom client interests are less important than good relations with the court (Barak, 1980; Blumberg, 1967|1974; Downie, 1971; Kappeler, Blumberg, & Potter, 1996; Lynch & Groves, 1990; Quinney, 1970; Reiman, 1995; Sudnow, 1965), many public defenders seem as indisposed to prosecutors as they are to the police. Bellows (1988), for instance, notes that many defenders in his office “consider prosecutors persecutors” (p. 97). Remarkably, an attorney interviewed for this study made this exact accusation. Noting that defenders receive few rewards for their efforts, this attorney acerbically suggested telling people who would like to be appreciated for a job well done that “they’re better off in being not a prosecutor, excuse me, but a persecutor.” [38] In particular, the literature indicates that there are public defenders who believe that prosecutors willingly look the other way or actively assist police officers to commit perjury (Eisenstein & Jacob, 1977|1991, McIntyre, 1987; Wishman, 1981). Dershowitz (1982), for instance, has written that “many prosecutors implicitly encourage the police to lie about whether they violated the Constitution in order to convict guilty defendants” (p. xxii).1 Wishman (1981), moreover, maintains that “some prosecutors encouraged cops to lie and told them what to say; others, more subtly, told the eager-to-be-helpful cop what would be the most effective testimony and only then asked him what had actually happened” (p. 52). In addition, prosecutors are often charged with an overzealous desire to convict and to secure harsh dispositions, regardless of the facts or equities of the case; Bellows (1988), for one, maintains that “it has always struck me how cavalierly some prosecutors press judges to lock up my clients” (p. 81). This perhaps explains such sentiments as those expressed by Feige (2002), who asserts that “like most longtime public defenders, I can’t imagine incarcerating people for a living” (p. 60). Indeed, overzealous prosecutors are seen as all too willing to engage in deceitful tactics in 197

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order to accomplish these dubious objectives. Wishman (1981), for example, recalls that “I have had prosecutors tell me that certain reports or witnesses didn’t exist when they have clearly known otherwise. Or, in an effort to pressure a plea, some have told me they had more evidence or witnesses than they actually did” (p. 52). One Cook County public defender, in fact, provided a particularly agitated response when McIntyre (1987), asked whether or not prosecutors were unprofessional: Yes, yes, yes! Lying, having witnesses lie; they lie themselves on the record, they make inferences that I’m lying. It’s just a basic matter of cheating, of not being professional. Because they feel they must win the case and will do anything to win the case… Their obligation is not to win; it is to make sure that the law is upheld- and to make sure that my client gets a fair trial. And to them, that’s a fallacy. (p. 146) [Italics in original] The defenders taking part in this study also had some rather unfavorable opinions of prosecutors. In much the same manner as they qualified their criticisms of the police, however, they frequently allowed that not all prosecutors were bad. For example, one attorney distinguished between “a good prosecutor [who] sees a case for what it is and has the courage to treat it the way it is” and a bad one who says, “‘I think this is crap, but I can’t make it go away.’” [46] Another described the difference this way: You’ve got prosecutors who say, “I’m gonna deal with you! You better believe I’m gonna deal with you! We’re gonna haul your ass in and punish you for whatever you did!” That’s one attitude. Another attitude is, “this person may have done something, but let’s make sure that there’s a reason to punish him and that we’re following the law.” [15] In fact, several of the public defenders interviewed in this study revealed that as law students, they thought they themselves might become prosecutors in order to do the job in the more principled fashion- something described by one as of vital social importance: In my mind, the prosecutor has the ultimate power to do good in the system. Ultimately, it comes down to them, whether somebody’s going to get prosecuted, whether somebody’s rights are going to be played with, whether we’re going to

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trifle with certain things. It’s their decision. And I felt that that’s the best place to do what I thought I would be good at, which is to make sure that the Constitution is a real document. That we’re really following it. We’re paying attention to it. We’re making sure these protections apply to everybody. From some inner city kid to someone out in the suburbs. That it’s going to be applied fairly. That it’s going to be applied evenly. That the cops aren’t going to be allowed to start overstepping their boundaries. What a great job I thought that would be! To be the ultimate administrator of justice. Again, what you perceive it’s going to be and what it in fact is are two very different things. [10] Almost all of these would-be-prosecutors recount that as early as their law school internships, they became disillusioned with prosecution work. Two suggested that prosecutors were not discerning enough and many defendants who were prosecuted simply should not have been: Even at the prosecutor’s office, the people I worked with were- they were fair for the most part, but… when you go to court and you see what goes on, like most of the people arrested for the petty offenses, you’re just, you’re like, “Wow, they go to jail for a year for this?” It’s, like, crazy. I wanted to, like, maybe, sort of even it out. [20] Very early on in my very limited prosecutorial experience, [I realized that] an awful lot of prosecutions are just people trying to put sad and stupid people in jail for being sad and stupid people. And that doesn’t seem to me to be right. [43] Others recalled encountering what they found to be an unpleasantly punitive prosecutorial mindset. According to one, “I didn’t like the mentality there. It was a more harsh mentality.” [22] Bear in mind as well the remarks of two other attorneys, the first of whom considers a number of reasons why people might become prosecutors and then criticizes a “vindictiveness” epitomized by “this feeling that they’re over there and really going after people with this blind will to do them harm”: Why are they there and why are we here? I expect everybody’s got their own unique reasons. I know what my reason was to want to be there, and I expect that several of

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Public Defenders them share it, that this is a great job because you’re doing such important work. Others, I know they had family members who were cops, who were prosecutors, and it’s kind of indoctrinated in them that, “This is what we do.” Others may have more nefarious purposes in wanting to do evil. I don’t think that that’s the case ever. But in the end, sometimes the way they behave, you sort of think that that’s why they’re there. Although I can’t believe they started out that way. Some of them border on that. It almost comes across as a delight in torturing other people. [10] At least my experience has been that a lot of prosecutors are people who do it because they want punishment, they’re angry, people should go to jail, you should rot in hell, sex offenders should serve their time, then be reviewed and held indefinitely because we think they’re a danger. That’s offensive to me. Which is why I wanted to be a prosecutor, because I thought maybe instead of saying people should go to jail, I could eventually change over a few- instead of going to jail, have an alternative. Sort of have a paradigm shift through the whole system. And I didn’t run into anyone wanting to do that. And I sort of decided that it would be easier to work on this side, to try to advocate for something other than jail. I have run into prosecutors now who are very willing to consider other options, but when I came into it, the overwhelming sense to me was, there’s no room for change. It’s, “You’re a criminal, go to jail.” [45]

Consistent with these observations, the vast majority of defenders interviewed for this study expressed at some level of intensity some kind of concern for what they perceived to be the punitive disposition that anchors the attitudes and behavior of all too many prosecutors. Consider, in sum, the remarks of the following two defenders: Now, you’ve got a defense attorney, you’ve got a prosecutor, and a judge. The judge has to send someone to jail if they’ve been convicted. The defense attorney is going to do the best they can to prevent that from happening. But a prosecutor, the ultimate goal of a prosecution, in practice, is to punish someone. Now, I learned in law school that the role of a prosecutor is not to believe that a person is guilty or not guilty, but to just get to the truth of it. But in practice, that’s not the way I see prosecutors operate. I see them as working

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to put people away, and if it’s not putting people away, it’s putting them on probation, or it’s putting them in some courtsanctioned program. It’s imposing a penalty on someone. [15] I think there’s a sense that I have about many prosecutors that they just, they like to prey on people, they’re ruthless. I haven’t met too many prosecutors who had a moral queasiness about someone being overcharged. A lot of prosecutors seem to be people who just want to get other people. And [this is] the only job that gives them the power to do that. [36] PROSECUTORS LACK COMPASSION: “TO THEM, OUR CLIENTS ARE NOT HUMAN” The broader impression that prosecutors are unduly punitive often includes the more specific allegation that they do not fully grasp what the lives of most criminal defendants are like. Even more starkly, public defenders often contend that prosecutors simply refuse to recognize that indigent defendants are human beings; as the chapter on altruistic motivations would suggest, this is particularly offensive to those defenders for whom the humanity of their clients is of paramount importance. One public defender, in this regard, argues that prosecutors view criminal defendants through “the unspoken separation between us and them.” [4] Another laments that prosecutors fail to recognize that there are “people whose situations in life you can’t even begin to understand. You can’t even understand how they wound up making the choice they made. There’s no mercy. There’s no concept of them as human beings.” Rather, this attorney maintains, “they simply ask themselves, ‘Can I prosecute it?’ And if they can, they do.” [10] A third example is the defender who states that his relationship with prosecutors “depends on the person. If it’s a person that I think isn’t considering the fact that this is a human being, then it could be bitter.” [38]. Consider in addition, the following remarks, the first two of which come from former prosecutors: The system when you’re not actually in it working as a defender, you tend to make everyone else- all other parts of the system- they’re not human, they’re not real. So, as a prosecutor, they’re all criminals, they’re all perpetrators. There’s no faces, there’s no humanity to it. [44]

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Public Defenders I think to most prosecutors, defendants are just sort of nameless, faceless criminals. I think they get jaded from their end also. They don’t see defendants as we see them. People who are products of bad homes, drug-addicted parents, drugaddicted mothers, no fathers, no education. They don’t see that. They just see the impact that the crime had on a family or an individual. I don’t think they treat them fairly, but they never get a chance to know them or see them the way we see them. [2] Some of them have no perspective whatsoever. I’ve dealt with one in particular, very frequently. All he does is look at their sheet, and if they’ve got a long record, then he wants to literally put them away... no matter what the circumstances. That’s not being a human being! That’s not even being a prosecutor! I mean, that’s no perspective whatsoever. [42] I think that prosecutors start from the position that they are concerned about the victim, and they don’t look to the humanity [of the defendant]. As a class, prosecutors as a class. I know a lot of prosecutors who are very good people, nice people, and a lot of them become defense attorneys and sometimes I wonder about that. But their position is, they don’t look to the humanity of the individuals, they look to the act of the individuals, and how that person needs to be punished, and how that person needs to be reckoned with. And that’s not me. That’s not me. [15] I don’t like their whole mentality: “We have to get these people,” whether it’s a serious crime or a non-serious crime. There’s an inability to put themselves in our client’s position. Especially the younger [prosecutors]. There are certain things that are horrible. I can understand being outraged. But they’re outraged very easily. It really annoys me. Like a prosecutor can’t see when a person is pathetic. They are outraged. But you look at the person and she’s a human being. It’s pathetic. Or drug offenders. They’re addicted, homeless. Pathetic. But they’re outraged about that. They’re told that you’re on the side of law, justice. They feel they’re on the side of right and you’re evil. [22] [Prosecutors think] they’re helping people. I think that they’re hurting people. And sometimes, it’s a very sloppy way that

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they’re doing it. They don’t meet the clients. They don’t know anything about them. They don’t know about their lives. They don’t know the circumstances behind it. They don’t really look at all that. Sometimes, people just need a little help along the way. And they’ll stop stealing. And they’ll stop dealing drugs. [Prosecutors don’t] think of it like that. [They don’t ask themselves], “Let me make sure this person really did it.” I hear them say, “A year in jail.” What? Do you know what you’re saying? They just say it! And I just don’t see how they can do it. [25] Many defenders, of course, stipulate that there are many fine prosecutors; still, there is no agreement about whether the sort of behavior described above is typical. Recall for a moment the attorney who notes that there are “a lot” of prosecutors who are “very good people, nice people,” but whose comments are directed to prosecutors “as a class.” Another, while in many ways rather critical of prosecutors, reports nevertheless that quite a few are “very, very liberal.” [34] The following defender estimates that perhaps 60% of prosecutors are unduly hardhearted, and for illustrative purposes provides an informative description of what an appropriately compassionate prosecutor might be like: MW: How about prosecutors? Do they handle your clients fairly? PD: Some do, some don’t. Some only see them as a defendant. There are some prosecutors who actually see them as a person who committed a crime, and who try to help them. I guess it depends on the type of crime and the type of prosecutor. Some are helpful, and you can talk to them about the person, and then speak about the crime. MW: So what’s a good prosecutor like? PD: Someone who recognizes that this person did a crime, but there may have been extenuating circumstances. And that’s not an excuse for the crime, and it should be addressed, their behavior. And I’m not saying, you know, just slap them on the wrist. But, if you see that this person is stealing just to support a drug habit, if you see that this person is homeless and that’s why he’s sleeping in someone’s stairwell, if you address that issue as a prosecutor, you know, show us some resources and this probably won’t happen again. And if a prosecutor comes to me after I say to them, “Well, this person

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Public Defenders is homeless, and that’s why he’s sleeping in that stairwell,” if that prosecutor comes to me and says, “Well, you’re probably right, and I’m not going to ask for jail time, but only if he gets into this type of program,” if a prosecutor comes to me and says that, that shows me he has compassion. [8]

A few defenders tried to explain why they think so many prosecutors approach their work in this manner. In the words of one: I can’t decide if it’s a sense of entitlement- like, “Here I am, I went to law school, I pay my taxes, I own a home, I’m married, I have a kid, and I’m an upstanding citizen. Everyone else should be.” In a perfect world, I guess I agree. I mean, it would be wonderful if everyone were law-abiding. This is probably a mistake on my part, but a lot of times, I relate to my clients as my children. A lot of times, the mindset of the prosecutor’s office is my clients are in the position they’re in because they chose it. I’m not so sure a person has chosen to live in poverty. I don’t think that’s a conscious choice. I mean, I think there are choices you can make that may lead you to poverty. But I guess I’m more willing to accept that poverty exists and I don’t like it and I’d like to change it. And the prosecutor’s office says poverty exists because the people who are poor choose to be that way. And should be punished for it. That’s what I think. [45] While substantially agreeing with this description, defenders in the next two exchanges add that such attitudes might indicate a fair degree of racism. The first describes a high-ranking figure in the local prosecutor’s office: PD: This guy is one of these guys who really, genuinely can’t grasp, can’t get his mind around why anyone would sell drugs, or use drugs. He had the discipline. He never did it, growing up in [a white suburb]. Real mystery there. He’s one of these guys who can’t allow for the fact someone else might not have had discipline, might have made a poor choice, or may be drug-addicted. Because it doesn’t happen to you. His wealthy, silver-spooned associates didn’t his entire life, so why are these kids doing it? And there’s an element of racism there too, in my mind. It’s always easier to resist putting yourself in someone else’s shoes. The more different they are from you, the harder it is to put yourself in their shoes. And

Anti-Prosecutor Motivations this guy couldn’t do it. He just doesn’t have that capacity. You can’t talk to him about it either. It just doesn’t get in. I’m not saying I can talk to him and he should agree with me. But he can’t even process it. If someone committed a crime, he can’t think of a reason in the world why anyone would commit a crime. It’s just that scary. There’s a lot of human frailty out there, and there but for the grace of whatever. I’m not a religious guy, but…. [Shakes Head] MW: What would your argument be to him to try to convince him that there are reasons why people commit crimes? PD: Probably nothing he hasn’t heard before. It probably would be this: instead of being born to an intact, white, upperclass, private school, well-off family [in the suburbs], if the little prosecutor was adopted by a crack-addicted, single mom, with seven other kids down in [the city], he’d be the guy in jail for selling drugs right now. But see, guys like that don’t get it. They think that, “I’m tough, I’m disciplined.” But you aren’t born with discipline. You learn it. [46] PD: Prosecutors and judges see less value in the lives of our clients than they do somebody who comes strolling into court with an expensive attorney and a suit and tie and a good job and a fine education. They have more to lose than our clients, because our clients don’t have anything. Well, that may be true, but jail is still jail, and a person’s freedom is still a person’s freedom. MW: Why do prosecutors find less value in your clients’ lives? PD: I don’t think prosecutors have the first clue of what our clients’ lives are really like. And I don’t think they care. MW: Why? Why is that? PD: Because prosecutors are by far mostly white. They tend by far to come from a more upper class background. And there are all these law and order types. I mean, I’m not saying that there aren’t some good prosecutors who sort of understand these things. But, I think it’s a fantasy to believe they’re really helping anything. And I think to a certain extent, many of them realize it. MW: So, is it a class issue? Is it a race issue? Are prosecutors racist? PD: Well, they’re not running around calling people “nigger” and “spic,” but I think everybody harbors racism within them,

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Public Defenders subconscious racism. And I think it’s possible, no matter what your so-called race is in the United States, whether you’re white, black or Latino, it’s just the way our society is. There’s subconscious racism that is in everybody’s blood. And it takes over in different ways. And I think one way it happens with prosecutors and things like that is sort of a lack of sympathy for the plight of poor minorities. Now, maybe they’re not standing around saying the wrong words or things like that, but it manifests itself in other ways. MW: But if everybody has it, then I have it and you have it. But is it more pronounced [among prosecutors]? I mean, they’re smart enough not to say certain things. These are educated people one way or the next, whether they do their job right or not. I guess my question is whether this bias that you perceive on their part, and this lack of sympathy, is it an arrogance? Or is it more than arrogance? Is there a racial component to it? Is there a lack of sympathy because the people they’re prosecuting are black and Latino? PD: Well, I think it is. I think each and every one of them would deny it. But I think it is… I think that the realities of the lives of our clients are so different from anything anybody who’s a prosecutor has ever experienced, for the most part, that they’re just unable to comprehend what it’s really like. Because they’ve never been in these types of situations. They’ve never been out on the street. They’ve never lived in a poverty situation. They’ve never been harassed by the cops. They’ve never had friends beat up by the cops. [29]

PROSECUTORS “JUDGE” PEOPLE In what is one of the more intriguing findings of this study, many public defenders complain that prosecutors “judge” people. It is important to understand that this allegation goes beyond the concern for truly innocent clients- although, of course, this is something that defenders find particularly alarming. Rather, whether a defendant is in fact innocent or guilty as charged, these defenders are unsettled by the awesome power prosecutors wield- the power to control the fate of others. As a general matter, these defenders find objectionable the practice of seeking out wrongdoing and punishing people. Some maintain, as the previous section reveals, that real life is complex, clients have hard lives, and crime is not all “black and white.” Others simply do not want to be responsible for sending someone to jail or prison. Consider the remarks that follow:

Anti-Prosecutor Motivations PD: I don’t ever want to have that thought of putting someone in jail or ruining someone’s life on my hands… even the ones that aren’t falsely accused, I don’t want to be the arm that puts someone in jail, that ruins someone’s life. I mean, I’m not saying there’s a better way to work the system, but I think that I couldn’t be part of that. And I interned at the prosecutor’s office in the crimes against children department and at the time, they were doing [a case in which a father murdered his child], so I would sit in on a lot of the interviews. And even that case I wouldn’t want to have prosecuted. And, I mean, he’s the pure devil, right? He’s the absolute horrible person who deserves to go to jail. But I wouldn’t want to be the one who brought him there. MW: Why? PD: I don’t know. [Laughs] I don’t know. Maybe- I don’t know why. [Pause] I don’t know. I mean, I think it’s scary the power that prosecutors wield, and I don’t think I would want the responsibility to have that. I don’t know. I just don’t- It’s not something I’d ever want to do, or ever do want to do. [18] MW: You said that if you were a prosecutor you would be more careful in your preparation. Could you be a prosecutor? PD: No. Only if it were a really, really bad case. I can’t put people in jail. I couldn’t do it. I couldn’t put people in jail. I couldn’t be responsible for that. I just couldn’t do it. MW: Why does that bother you? PD: Because [jail is] a terrible place. It’s a terrible way to live. Things happen. And I think prosecutors seem to do it without even thinking. They have no conscience. [25] MW: Could you be a prosecutor? PD: No. MW: That’s pretty definitive. PD: Yeah. [Laughs] It is. At least I couldn’t be a prosecutor in [the local] office. MW: Why? PD: Because I think they really don’t encourage the person to be human in there. Those people leave the office. They don’t stick around. So, that’s number one. Number two is, I think it would be a lot harder to prosecute somebody who might be innocent than to defend somebody who might be guilty. So that’s why. There’s two reasons why I wouldn’t do it. It’s the

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Public Defenders same reason I wouldn’t want to be a judge. I wouldn’t want to make those decisions, first of all. The prosecutor is making that decision when they prosecute. I wouldn’t want to be a judge. I wouldn’t want to make that decision. MW: Why? Why wouldn’t you want to make that decision? PD: I don’t know. It’s just not an area that I care to be involved in. [38] MW: Could you be a prosecutor? PD: I don’t think I could. I don’t think I could. MW: Why? PD: I think… I would have a hard time being responsible for somebody being in prison. I couldn’t be a judge. That’s for sure. MW: Why not? PD: Same thing. I couldn’t sentence somebody to prison. I’d have a hard time to judge people that way. MW: Even when they’re guilty? PD: Yeah! MW: I mean, they’re not all some poor [unfortunate guy] who got caught in a drug sweep. Some of them are really bad guys. PD: Bad guys! I wouldn’t want to be responsible for that. I think that if you talk to most prosecutors about how they see the role of the defense attorney and they’d say, “These people need to be defended, but I couldn’t do it.” And I think that I would give you the same answer. Many of our clients need to go to prison. I don’t think I could be responsible for that. [16] At times, there were some really difficult decisions to make [when I was a] prosecutor. I don’t know if I’d go back under those circumstances. I mean, you’re the one meting out the punishment. It’s not always the most comfortable thing. [6] After [a few] years as a prosecutor, I knew I did not like that job. I did not like prosecuting people. I did not like putting people in jail. I didn’t feel comfortable. [31]

Many public defenders also have the strong feeling that prosecutors are frequently arrogant and self-important- judging others as if they were without fault themselves. Indeed, it is largely for this reason that these lawyers would never consider working as prosecutors, and several with

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previous prosecutorial experience would be reluctant to return to that line of work: MW: Could you be a prosecutor? PD: No. MW: How come? PD: I think some people are born prosecutors and some people are born defense attorneys. There are people who have done both, but I couldn’t. I would not feel comfortable, for a lot of reasons… I would be politically concerned if I felt that there was some question of guilt in the case and I probably wouldn’t be a very effective prosecutor because of this. I don’t think my heart would be in it. MW: Is it because you would be asked to prosecute defendants you weren’t sure were legally guilty? PD: It’s not even just that. I mean, even if I could somehow be assured of every single case that I prosecuted was a guilty person, I would not feel comfortable. I basically would say [it takes] a judgmental stance and I’m not a judgmental person. And I don’t think I would feel comfortable sitting with that kind of power over individuals. [4] I find that most prosecutors do look at things in a different way. They tend to see things as one way or the other. In their mind, things are this or that and it doesn’t mean they are incapable of seeing the gray, but it’s less important to them. There’s an unwillingness to see the gray. Prosecutors judge people. That’s a little sanctimonious. My job involves the legal issues. It’s very different from right or wrong. That’s not your job. I’m not confident talking about my personal views of black and white. I’m much more conservative than people think public defenders are, but that’s not the way people are set up. And it’s pretty presumptuous to judge people according to your own moral code. [9] What they’re doing has no purpose and it requires that you have a very superior moral outlook about yourself. The constant judging of others, pointing at others, “You are going to jail!” [Points] I don’t have that in my blood. It’s offensive to me. It’s against the teachings of Christianity, the way I was raised. Judge not. Don’t throw the first stone. [37]

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Public Defenders PD: I know a lot of people who practice criminal law will practice on both the prosecutorial end and the defense end and go back and forth. And that’s great because I think it makes for a well-balanced attorney who understands both sides of the coin. But my personal preference is to be on this end of it, and I do not perceive of myself as a prosecutor, someone who would be good at that function. MW: Why not? You said before that you wanted to do something that was the right thing, the good thingPD: That’s true! [Laughs] MW: Why is this the right thing and the good thing, and being a prosecutor isn’t? PD: That’s an interesting question, because I do realize we need prosecutors, good prosecutors to do the right thing by society. But there’s something that is not in my nature to aggressively seek out and pin down evil in others, I guess. To judge and pin down and punish evildoers. It’s just something that’s really just not in my nature. MW: Why not? Why is that something that would make you uncomfortable? PD: It would make me uncomfortable because I am human and fallible. That’s the main thing. [12] I think that many prosecutors tend to have a self-righteous outlook and they feel morally superior. [36] I knew from the get-go that [public defense] was what I wanted to do. It was never a question. I never interviewed with the prosecutor. I never wanted to be a prosecutor. There’s just… you know, being a prosecutor is too black and white and I could never sit in judgment of another person. And they’re forced to do that. I’d rather be on the other side, where I’m helping the person. [34] Prosecutors just seem to have a different kind of personality, I think. Not across the board. There are exceptions. But they can be pompous, whatever. Defense attorneys have different personalities. I always noticed more of a self-righteous attitude by prosecutors. I don’t think I’d be suited to it. [22]

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PROSECUTORS DO NOT “DO JUSTICE”: THE PURSUIT OF CONVICTIONS AND HARSH SANCTIONS One of the most common complaints public defenders make is that prosecutors misunderstand what it means to be a prosecutor. In order to more fully absorb this point, it might be instructive to refer to two oftcited passages from the Supreme Court. In Berger v. United States, Justice Sutherland wrote that the primary responsibility of the prosecution is not to win cases, but to ensure that justice is done; though the specific reference is to federal prosecutors, the depiction that follows might just as well be generalized to their local counterparts: The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. (p. 88) Consider as well Justice White’s comparison of the prosecutor’s obligations with those of a criminal defense attorney from his dissent in United States v. Wade: Law enforcement officers have the obligation to convict the guilty and to make sure they do not convict the innocent. They must be dedicated to making the criminal trial a procedure for the ascertainment of the true facts surrounding the commission of the crime. To this extent, our so-called adversary system is not adversary at all; nor should it be. But defense counsel has no comparable obligation to ascertain or present the truth. Our system assigns him a different mission. He must be and is interested in preventing the conviction of the innocent, but… we also insist that he defend his client whether he is innocent or guilty. The State has the obligation to present evidence. Defense counsel need present nothing, even if he knows what the truth is. He need not furnish any witnesses to the police, or reveal any confidences of his client, or furnish any other information to help the prosecution’s case. If he can confuse a witness, even a truthful one, or make him appear at a disadvantage, unsure or indecisive, that will

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In this regard, many public defenders charge prosecutors with forgetting that prosecuting means doing justice. The following defenders, the first of whom is a former prosecutor, use this exact language to protest that all too often, prosecutors care more for winning cases, convicting defendants, and imposing as severe a punishment as possible than they do for finding out what really happened, dealing fairly with the evidence, dismissing weak cases, and doing justice: Having been in the system, and having been in the system on this side as a defense attorney, the more I came up against the change in the attitude of the prosecution where it stopped being- maybe it never was, but it seems like it’s a little worsewhere the prosecutors are no longer really interested in doing justice and trying to find out what went on. It became a contest of their winning versus our winning. And they wanted to win at all costs. And that offends me on such a deep level, because that’s not what it’s about. Their obligation is so different from my obligation and there is also a tremendous amount of arrogance on the part of the prosecutors. [44] There are a number of very competent attorneys in the prosecutor’s office. There really are. They’re good attorneys and they do their job well. The only problem I ever have with them… is very often they lose sight of what their mandate is… They want to do what defense attorneys do on cases. But they can’t because they’re not supposed to. Their ultimate goal is not to win their case. My goal- my oath that swears me to do my job- tells me to zealously defend my client. Anything that’s legal or ethical, I’m supposed to do. The

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prosecutor has a different standard, and his standard is to see that justice is done. If that means throwing out a case that he thinks is garbage, he should do it. [40] They, at least this office here generally, especially now- they don’t have a concern about the Constitution. They don’t have a concern about their obligation to see that justice is done. They have an “obligation” to see that they earn convictions. Again and again, I see myself sitting down with prosecutors and saying, “This search is lousy. This is wrong. This statement was obtained incorrectly.” Whatever it is. And they don’t even know what I’m talking about. They don’t even understand the law in these areas! I’m not supposed to be the one that’s really protecting people in that regard. I’m supposed to make sure that they are protecting them. And they’re not. And I don’t think it’s encouraged. I see some people get prosecuted over and over again for nonsense. Things that should never be pursued. They’re not using their common sense. [10] They are charged with carrying out justice, not just with obtaining prison numbers. And they don’t do that. They don’t do that. They perceive their job as to put people away. Even though, if you look at the Model Code and you look at all the writings on the prosecutor’s job and they’re supposed to be about fair dealing and justice and all of that and with very few exceptions, they just don’t worry about that. They conceive of themselves as really being on the side of God and right, I suppose. They really do. But I think the opposite. [48] Embedded in these statements are a number of specific criticisms. Many prosecutors, for instance, are accused of having an overzealous desire to convict. One attorney argues that “prosecutors are bred to think of our clients as guilty,” [38] while another asserts that prosecutors believe “if you get arrested, you must be guilty.” [30] A third bluntly states that “their goal is to obtain convictions” and adds, “they have this goal: ‘I’m going to win. I’m going to win. If we have a trial, I’m going to win. At all costs.’” [10] Defenders also charge many prosecutors with pushing for excessively harsh dispositions regardless of the facts or equities of a case; one attorney interviewed for this study contends that “there are [some] prosecutors who try to get as much time as possible out of this client and that client and every other client,

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simply because that’s what they do, and I don’t consider that to be fair.” [43] Consider as well the following: They keep on citing how many years a person is going to go to jail and they think it’s a little game if I can get nine years as opposed to five years. What’s being gained for the court? Nobody ever asks that question. Nine looks tougher. I want to be tough. So why not? I’m a prosecutor! I can say that! Take it or leave it. Yeah, that’s reasonable. I don’t mind if they give you a reason for whatever they’re doing. But when there’s no reason, it doesn’t make sense. Which I hear! It’s like, “Holy shit! This is unbelievable!” [35] [Prosecutors] with conscience and with courage, they could do a lot of good… So, if you see a guy that needs treatment, the law says what he’s charged with now is mandatory prison, [you’re not bound by those charges], you offer him probation. If you think a case is crap, you talk to the victim, you say, “Look, I’m not sure I believe you. Convince me...” They don’t examine their cases like that. They just take a shot. Why not? Take a shot! [Prosecutors say], “I don’t go to jail. All right, I’ll take a one-in-ten shot the guy gets convicted. Right? Shit case for me. I’m a prosecutor. Let’s do it. I want to build up my trial stats. I want to do this or that.” That’s evil. Jesus! One-in-ten? I don’t want a one-in-ten chance of going to jail. A one-in-a-hundred chance is too much. [46] One more argument is that many prosecutors make unreasonable plea offers. They insist, some defenders maintain, on top count pleas when it would be more appropriate to offer the defendant a reduction in charges: MW: How about prosecutors? Do they treat your clients fairly? PD: It depends, because there are some prosecutors who are just overzealous. They demand that my client plead to the top charge. But what you are offering me, they’ll get after trial anyway. [7] Everybody’s judgment is going to be different in what an appropriate resolution of a case may be. And I guess what I’m saying is that a lot of the people I encountered are young… but it’s almost a game. How many pleas to top counts can I

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get so my stats are better and I can get a promotion? And that really is the attitude. And those who are viewed as being good assistant prosecutors and reasonable, they don’t seem to move up the ladder. The more unreasonable ones seem to move up the ladder. And they look at these statistics- who got the most pleas to top counts. Should they have been pleas to top counts should be the question! Not did you just get them. To me, that’s not doing justice. [35] Lastly, there are public defenders who contend that “a lot of people are overcharged and stuff like that. Tons and tons of cases.” This attorney, in fact, came to this conclusion when working as a prosecutor, before even coming to the public defender’s office: “I did in the course of being a prosecutor… see a lot of cases where people shouldn’t have been charged or were charged with the wrong thing, so I saw a lot of abuse of the system.” [44] Other defenders maintain that although overcharging begins with the police, prosecutors frequently refuse to offer reductions suitable to the facts of the case. Recall that the defender in the first of the excerpts that follows estimates that clients are overcharged “as a deliberate police and prosecution tactic” 30 to 40% of the time, something viewed as entirely inappropriate: I think that when people are charged with a crime, society is trying to hold them to account for a wrong that they’ve committed, so to the extent that the magnitude of what the people representing society- the prosecutor- alleged to have been done is inflated solely for the point of extracting a higher sentence that would otherwise be appropriate, I think that’s unfair. That is using the law and the authority of the state to punish people for things that they didn’t do. [36] PD: There’s a lot of people who get overcharged. That’s like, give them an inch, they’ll take a mile. MW: How often does that happen? PD: That happens a lot more. And it used to be that we could negotiate them back down to where they should be, but that’s becoming more difficult now over there. People do one thing regrettably wrong or illegal and they wind up getting charged with that much more. MW: Don’t the prosecutors have screening or early case assessment or something? Don’t they interview the cops and say, “What happened?”

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Public Defenders PD: And they should, based on that conversation, come to a more reasonable offer. It’s my concern lately that I’ve been hearing more often from prosecutors, “I can’t reduce it down that far because look how the cops charged it.” And you want to shake them! “The cops are wrong. You know they’re wrong. You know it’s an overcharge. There aren’t sufficient facts in this accusation for that charge to go anywhere and you know it.” But because it’s charged that way and it’s on the books now that way, if they make an offer to what it should be, it now looks like a huge reduction, when in reality, it’s either no reduction at all, or a standard one, from one step to the next. [10] Well, I mean, you have clients you know are guilty, but what they’re guilty of and what they’re charged with are two completely different things… And there’s a lot more to a lot of our cases than meets the eye. So, that’s the aspect of it that I love. Maybe not every case is like that. But that’s enough to perpetuate me forward and keep me going [on this job]. [18] And that’s the vast bulk of work that public defenders really do, I would say- take people who are overcharged and at least get the system to come down to what’s more appropriate or what’s more just based on what they really did. [48] PD: They overcharge as a matter of policy. As a matter of policy. MW: Why do they do that? PD: I couldn’t tell you. I think it’s the statistics. The prosecutor is interested in statistics. That’s how he gets reelected… That’s the nature of the beast. I don’t think it would be any different even if I was a prosecutor. That’s the nature of the beast. That’s the nature of the beast. They have to charge the guy. [33]

LACK OF AUTONOMY: POLITICS AND POLICIES The attorney above addresses something else many public defenders find disquieting: the influence of politics on prosecutorial behavior. One defender, for example, argues that prosecutors respond to politically expedient racial cues: “crimes committed on white suburbanites are treated differently in my experience than crimes in the city. They’re higher-profile when they get reported in the papers and they’re higher-profile when they’re prosecuted.” [41] Considering that

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minorities are over-represented among criminal defendants, in what is perhaps a related allegation, many defenders maintain that in jurisdictions that elect chief prosecutors, offices are overly sensitive to allegations that they are soft on crime. The chief prosecutor, the argument goes, cultivates a law and order image in order to ensure reelection and assistants conform to that approach; as one attorney asserts, “the chief prosecutor is an elected official. He’s responsive to the public, so you have to be responsive to him.” [14] As such, it is frequently asserted that political incentives contribute to what defenders view as the excessively punitive approach of many prosecutors, their lack of compassion, their judging of others, and their failure to do justice: PD: You’ll never hear a chief prosecutor run [and] say, “I’m going to make sure that your constitutional rights are protected.” You never hear them say that. You hear them say, “I’m for the death penalty. I’m for this. I’m for that. I’m for harsher sentences.” MW: Why do they say that? PD: Because it gets them elected. MW: Why would an assistant prosecutor say that? PD: To support the people they perceive to be in control of their fate. If they’re going to get a promotion, this is expected, that they will do this, that they will have that attitude. If they’re going to remain in their job, it’s expected that they will do this. And now, as I said, more so than ever. It’s almost a procedural thing over there now. Before, you could make an offer to a reduced charge. Now, anything like that, you have to clear it with the people up above you. So they have very little ability to maneuver anymore. [10] PD: Because it’s a political position, if things don’t go well, it’s going to look bad for them. As [an assistant] prosecutor, you have that problem: “We think the just way to resolve this case is X, but because we think it’s going to look bad, we’re not going to do it that way. Their idea is that they’re supposed to do justice, and many times they do, but there are many times they don’t. MW: Are you suggesting that there’s an inability to recognize certain exigencies involved in cases? PD: They recognize them. They just don’t go with them, because there’s a political layer they’ve got to deal with. It’s

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Political interests of this sort, these defenders argue, limit the autonomy of assistant prosecutors. The excessively punitive nature of prosecutorial work, they charge, is in large part rooted in office policies set by superiors who make it clear to assistants that convictions are paramount and they are expected to be tough; according to one defender, “[assistant] prosecutors are politically motivated. They’re not motivated to do the right thing. They’re motivated to get their boss reelected.” [46] It is this lack of autonomy that also makes a number of defenders think that they could never be prosecutors. MW: Could you ever become a prosecutor? PD: No. MW: Why? PD: Because if I hear one more [assistant] prosecutor say, “Well, our office policy is…” and not looking at the individual they’re saying that about, I would have to kill them! [Laughs] I could never do that. A lot of times we’ll prepare memos or whatever, pre-sentence reports, something like that, and a lot of times there are some very compelling things in there. And they’ll just say, “Well, our office policy is, we can’t give anything less than a year on [a particular offense].” I don’t want to work with an office policy, one person setting the law and I have no individual flexibility or power. I like to be able to do what I want to do. If it was my case, and I could work out the case the way I wanted to, then maybe I’d consider it, but I doubt it. [18] MW: Could you be a prosecutor? PD: No… I couldn’t prosecute on a day-to-day basis. You have to mindlessly put people in jail. I couldn’t do that, emotionally. I’d rather mindlessly keep people out of jail. That doesn’t bother me. Even if they are guilty. [Prosecution] stinks. MW: Is this kind of prosecutorial mindlessness institutional or personal?

Anti-Prosecutor Motivations PD: [Here], institutional. It’s true. Man, it’s true… [Assistant] prosecutors don’t have much discretion. [26] MW: How would you describe the way these [assistant] prosecutors tend to see the things that you are talking about? PD: They’re told by supervisors that as a lifelong prosecutor, you don’t question, you just do it, you’ve got to go forward or else you lose your job. They’re under a lot of pressure like that here. So, they’re afraid to say, “I think this cop is lying,” because their boss will say, “I don’t care what you think, you’re going to go to trial on his case.” So I think that that’s the pressure that they feel. A lot of them are afraid or put blinders on because of the pressure factor. [When I was a prosecutor], it was a very pressure-packed job. And where I worked, we did a lot of trials in a short period of time. The trials went very quickly. We were always having problems with witnesses. And a lot of times, you didn’t really have the opportunity to get into the questions, the things that were presented to you as factual, like the police reports and stuff. You’re kids. You’re kids out of law school. You don’t know better, sometimes. Or, you don’t have the confidence to challenge somebody who’s been doing the job for 10 or 15 years, and is maybe out of touch now, sitting in an office all day reviewing files. I think that that’s pressure, and a factor in how they deal with these cases. MW: How about those people in these supervisory positions who put down these inflexible guidelines? PD: Well, this is all just my opinion, obviously. But, I believe a lot of them are political creatures who have to answer to a politician that is pretty powerful, and if he makes up his mind that he wants something done in a certain way, and doesn’t want to take a “no” for an answer, then that trickles down, and becomes a bigger and bigger and bigger order as it goes down, because it’s coming from up high. So the pressure for somebody just out of law school is enormous. [17] PD: I couldn’t see practicing law if I wasn’t practicing this kind of law either on one side or the other and I don’t know that I care to go back to prosecuting. MW: Why not? PD: Because after having been on this side of it and seeing the way the prosecutor’s offices are being run, it’s disgusting

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Public Defenders to me, it’s not about justice. [Assistant] prosecutors, even if they want to, they don’t even have that much space to consider it from that perspective, because there’s too much pressure to get convictions and to win. Statistics- that’s what it’s about. [44] MW: So are you suggesting there’s an inability to recognize certain exigencies that come up in a case? PD: Yes. Yes, I am… They have an ability to use discretion, and they don’t. A lot of them don’t. And I don’t know that this is just [here]. A lot of them say, “Well, I can’t do that. I need to talk to my boss,” or whatever. And I sort of feel like, “You have the ability. If you can’t say, ‘I will make you this offer,’ then I don’t want to talk to you.” Not that I don’t want to talk to you, but I sort of feel like, “If you can’t bargain because you’re scared or you feel like you’re bound by other things in your office, give me some latitude.” [45] They’re forced to take on policy positions. They’re forced to judge people without looking at all the facts. Most prosecutors’ offices today have policies on how they deal with a certain case. I mean, if the media, for example, gives a certain case a lot of publicity, they’re going to have to be hard on that person, despite the fact that they might see a different side to it. And I could never be in a job like that. [34] MW: Ever think you could work as a prosecutor? PD: [Here]? Definitely not. I guess it would depend on who the chief prosecutor is and what their philosophy is. Like, if you as [an assistant] prosecutor have a lot of say in what was going to go on with your individual case, then I could do it. But if I had to cow down to what my supervisor said was the right thing to do even though I didn’t believe it, then I would have a problem with it. MW: What would you think would be the right thing to do in your perspective? What would the conditions be like? PD: Well, each case is different, but a lot of the times, at least from what I’ve seen- I don’t know if it’s a numbers thing- it’s sort of like a protocol that they feel they must do and they might not take [into account] the necessary circumstances of each case. Like if you’re arguing something that should happen and you’re giving the reasons and the [assistant] prosecutor agrees with you, and then they come back and say,

Anti-Prosecutor Motivations “Well, I can’t do it because they’re not letting me do it.” I, being that [assistant] prosecutor, would be very frustrated and I wouldn’t be able to do that job. [20] MW: Why do they have to have jail time [for certain crimes]? PD: I don’t know. Maybe, it’s the chief prosecutor’s policy… [On that crime], they’re looking for jail time automatically. I mean, it might be the crime of the day. Like sometimes, they’ll do a prostitution sweep and they’re like, “Okay, no dismissals, no community service, we want jail time on all these prostitutes.” And it just might be the crime of the day. “Okay, prostitution is the crime of the day today.” You get no breaks. It might be just some policy that’s coming down the pipeline or something like that. It changes from time to time. It used to be marijuana, when they were doing marijuana sweeps... It’s like, “Okay, you got a marijuana charge? No community service. We want jail time. Two, three days. Five days. Jail.” But now it’s changed. They’re going back to community service now. So it really depends on whatever policy is coming down the pipeline. MW: The policy is generally coming down from above? PD: Yes. MW: Almost everyone I’ve spoken to says they couldn’t be a prosecutor because everyone is always telling you what to do. You don’t have a lot of flexibility. PD: That’s true. MW: But you said there is much more discretion about how to handle your cases where you work now? PD: Yes. Definitely. And prosecutors will tell you, the assistant prosecutors will tell you all the time, “I can’t make those decisions,” whereas we’re pretty much autonomous with our cases. Of course, we have supervisors. But they’re there to guide you, more so than to tell you what to do, or to make you do something. So, yeah, we have- I don’t want to say more power than a prosecutor- but we have more flexibility, more choices to make on behalf of our clients. [8] MW: Could you, yourself, be a prosecutor? PD: No. MW: Why? PD: They have no discretion. They’re like puppets. When you have to go to a supervisor… to get permission to dismiss a

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Public Defenders case that never should have been prosecuted, you got no fucking power… There’s no discretion. MW: Institutionally or individually? PD: As an institution, [the chief prosecutor] keeps a tight grip. For instance, [no cases of a certain type], no matter how improper the search is, can be dismissed without his authorization. I mean, the assistant can say this is the worst search in the world. He can’t do shit about it. That makes no sense to me. MW: At an office that allowed a little bit more freedom, could you be a prosecutor? PD: Only if I was given some autonomy to decide… You have to have some autonomy to make decisions on a case. If they say you can make the call on a case when you see a bad case, a bad search, you can make the call. MW: Do you think that prosecutors would be more likely to [drop a case] if they had the autonomy to do so? PD: Oh, yeah. Oh, yeah. Oh, yeah. Because they’re forced to try cases. They come to you- I’ve heard them say this: “I don’t want to try this case.” Especially when they know you’re good. Nobody wants to try a case and lose. If they know they’re going in losing, they’ll tell you, “I don’t want to try this case. I don’t want to try this case, but I have no choice. I would do anything in the world you ask for, but I can’t. My supervisor won’t let me. I have to do this.” All right. Blame your supervisor for the not guilty verdict. Because that’s what it’s going to be. [33]

There is an interesting question to address here. Why are assistant prosecutors willing to go along with what public defenders think of as vindictive office policies? Is it because they are concerned about job security? If assistant prosecutors were free to act as they truly wished, would they in fact be more discerning? The public defender, above, for example, asserts that there might be something to this explanation; another agrees: “a lot of them are just scared. A lot of them are scared to do the right thing. I have very little respect for that, but at least I know they’re human.” [46] On the other hand, is what defenders criticize as a lack of autonomy something that is really an indication of a distinctly punitive prosecutorial mindset, political constraints notwithstanding? It is difficult, of course, to separate these notions and ascertain by any precise measure their relative impact. Nevertheless, there are defenders who seem prepared to accept that both are part of a larger problem. In the words of one attorney, “prosecutors have to

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respond to their supervisors and their supervisors’ perceptions of what the public wants to see and they sometimes incorporate personal feelings into the disposition of a case.” [14] Another defender elaborates: MW: Do [prosecutors dismiss cases that should not be prosecuted] is the question. PD: No. Do they not do it all the time? No, of course not. Sometimes, you’ll get a prosecutor that will say there’s not much of a case here. Do they throw the case out? Unlikely. They say, “There’s not much of a case here. How about a misdemeanor?” But if there’s no case, there’s no case. Why are you offering me this? Because they have a political reality. The chief prosecutor is an elected position. Every assistant prosecutor that serves under him serves at his will. They are essentially political. If you start dismissing cases and throwing out things you think are all garbage because the cops aren’t doing their job, you know that some captain is going to call up your boss and before you know it, you’re finding yourself in a sling. No one wants to be in that position. They don’t want to find themselves thrown down to just doing misdemeanor drunk driving cases for three years because you were doing what you thought was the right thing to do. They can’t afford that politically, whereas defense attorneys don’t have any such encumbrances on them. MW: So, is it political, or is it a prosecutorial mindset that you find a little unseemly? Is it all political? PD: Not all political, no. It’s part of it. The politics are part of it. Even if it’s not overt, it’s a subtext weaved into all prosecutors. It becomes part of their mindset. But there is also the prosecutor’s idea of fighting every case, pushing every case to the limit. Seeing how much of a conviction can I get, rather than what is the conviction that is most justified here. Even if you’re not concerned with the political reality of it, I bet you that I can get the jury to believe this argument. But is that what the facts really call for? Because if they don’t, why are you asking for it? Because I can get it. But that’s not what you’re supposed to be doing. And the most frustrating thing for most defense attorneys is that prosecutors are always forgetting that. [40]

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YOUTH AND INEXPERIENCE Several defenders believe that many of the problems discussed in this chapter are particularly prevalent among young prosecutors working in their first job after law school. Some, for example, argue that young prosecutors, especially, lack the life experience necessary to grasp the hardship and ordeals faced by poor people on the street. According to one defender: Now, you get the new and young prosecutors, they’re more difficult to deal with because they don’t know how to deal with the job. They don’t have the life experience to say, “So, she stole some food at [the supermarket].” They feel that they have to put everyone in jail because their bosses look at their stats. [37] An ex-prosecutor added to such observations that many in his former job fail as a general matter to understand the insulated nature of their profession; in the outside world, for example, people tend to take a more understanding view of human shortcomings. When this defender was a prosecutor, however, “a lot of people who went to work there came straight out of law school and had no other life experiences and for them it was everything. And I knew that wasn’t the case”: They are told that this is the way something has to be. And then, they don’t understand that people have different experiences on the streets and the situations they are presented with may actually have different takes… If you’ve gone out and worked, if you’ve had different experiences, if you dealt with other people other than people inside the prosecutor’s office, I think it opens your eyes to other possibilities and other explanations for the things that may have happened. Things that are presented in criminal settings, maybe it isn’t the way it’s been presented to you from that one point of view, being the police. The law enforcement point of view. You’re willing to question a little bit more. [17] Other defenders argue that it is the lack of legal experience that makes young prosecutors difficult to deal with: You got very eager, young prosecutors. This is the beginning of their career. When I interview a client, I get a flavor of what’s the truth and what’s not the truth. Generally, it’s not exactly what they say. Somewhere in between what they say

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and what the prosecutor says is the truth. Something in between is the truth. You get these eager prosecutors, who don’t know how to filter these cases, a little. They’ve read the complaint and they don’t look into anything, and they charge it out without an interview. So, they’ve read these things and they just literally charge whatever is there without a real interview. And complainants sometimes, you know, they puff the case up a little... Sometimes, they go overboard a little. They build the case up a little, that’s part of the problem. So, the complainant might be puffing up the case, the cop might be puffing up the case- you know, he gets promotions based on his arrests. So, it’s up to the prosecutor to neutralize that, I think. I think that’s their job. And I don’t think they’re that effective at that. [33] A lot of prosecutors at the lower level are very inexperienced and they really don’t know what they are doing. And they’re so confused about their role and what is going on. And so, it’s hard to get really angry at those people because they’re afraid, they’re following orders. I just wish they’d have more insight. [34] A number of defenders also charge that as compared to their older and more experienced colleagues, young prosecutors are particularly arrogant, judgmental, and inclined to abuse their discretion. Consider the remarks of the following defenders, each of whom is a former prosecutor: There was also a tremendous amount of arrogance on the part of the prosecutors, especially the newer ones who have no basis to be arrogant. Not that arrogance is good for anyone, but particularly when you had no experience, you need some humility. And they had none. And the arrogance and the attitudes and the way they treated my clients, and then as an extension of my clients, me- really, really offended me. And then, I saw what was happening to my clients and the way they were treated and the whole system and how easy it is for somebody to be accused of a crime and how hard it is to defend yourself. Just on the word of someone you can be in jail and you can stay in jail for a long time. It’s really, really hard and people really need someone who will take their cause and do what needs to be done. [44]

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Public Defenders MW: Could you be a prosecutor again? PD: [Pause] Hard decision. Hard decision. I’ve seen too many things over the last [several] years. Things have changed. [Maybe] I’ve opened my eyes. Perhaps they always existed. On misconduct and abuse of power and abuse of discretion. It would be very difficult. I would like to be a prosecutor if I was in charge of teaching and training. Because I think if you train prosecutors to be good lawyers, then they’ll be better prosecutors. MW: So how would you train prosecutors differently than the way they are trained now? PD: Prosecutors are being trained- and this is a simple and general answer- [to believe] that anyone who gets arrested is guilty. That defense attorneys have no ethics and are only concerned about getting a deal or getting their clients off without any sense of justice or fairness. Therefore, prosecutors have no respect or consideration for any possible defenses that could come up. If these new prosecutors were taught to think like defense attorneys, to see the other sides of the issues, they would be better prosecutors and they would also tend to get rid of cases that don’t belong in the system. It would make the whole system better. [30]

As these comments make clear, a further argument is that prosecutor training and supervision leave much to be desired. Because of heavy turnover, inexperience can be a problem that afflicts virtually an entire office; people who lack the necessary knowledge and skill are frequently promoted and an inflexible office culture emerges. A former prosecutor, for example, recalled one reason for leaving that job was that “there were a lot of people who rose to positions of authority who didn’t have a clue about how life really worked.” [17] Two other defenders make much the same point: I see prosecutors who have been in the office eight, ten years leaving the office, newer people being elevated to supervisory positions, instructors who have no experience teaching younger people who have no experience. And therefore, they are being guided by the let’s-play-safe-rule of “everyone’s guilty.” That’s the wrong attitude to have. [30] Sometimes I view what goes on- it’s the wrong standard applied [at the prosecutor’s office]. They have had a lot of turnover lately, so they have very young people, in positions

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of significant power in very significant cases who, in my opinion, are not that ready to be where they are. But they’re sort of forced to be because of the very high turnover rate. [35] PROSECUTION ETHICS Although no one interviewed for his study said that prosecutors directly instructed the police to lie, the previous chapter demonstrates that many defenders believe that police perjury is a significant problem. Several defenders agree, moreover, that there are some prosecutors who are willing to close their eyes to police misconduct because they too believe that “the end justifies the means”: I know that having been a prosecutor, they are conditioned to take the word of a police officer over anybody else. They view it as being part of the job and they don’t always question when they should question. And I have to say that it wasn’t a matter when I worked as a prosecutor, because we didn’t have that institutional mentality [in that office] that the police never lie or you always have to do what they say. They were more willing to question there than they are here from what I have seen. There’s also a great deal of pressure here, even though they know the police officer is not exactly telling the truth, to think that just because the person’s been arrested, he must have done something wrong, so they have to proceed with the case somehow. And they’re willing to overlook these mistakes and lies that are being put forth as facts. [17] I think that many prosecutors turn a blind eye to the less savory things that police do. I think that many prosecutors are- how shall I put it?- eager accomplices to police corruption. I don’t see that many prosecutors who appeared to be offended by police misconduct. To them, I think that’s a necessary evil in the larger goal of putting the bad guys away. [36] PD: I’d be very uncomfortable, I could not see myself in the role of a prosecutor. MW: Why? PD: Because I think the nature of the job institutionally is to disregard the presumption of innocence... I can’t see myself prosecuting someone… I mean, I’ll say this about my clients:

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Public Defenders most of them have done something. Not all of them. There’s clearly and innocent percentage. But most of them have done something. So you could say that the cops are right! Because the cops arrested them. And you could leave it at that. And I think this is where the prosecutor mentality comes in. The cops are justified in what they’re doing. “Joe Shmo has drugs in his apartment, so it’s okay to bust my way in there, or get a search warrant on bullshit information.” The prosecutor’s attitude is going to be the ends justify the means. And my attitude is that there’s a rule of law. And people have rights. [15]

Interestingly, there are defenders who grant prosecutors some measure of absolution from the charge that they knowingly tolerate this sort of police misconduct by observing that in many cases, they simply will not do the work necessary to determine what actually happened. In the remarks that follow, one defender argues that many prosecutors are so convinced of the righteousness of their cause that they are unable to identify even the most blatant police lies: PD: The prosecutors are not the swiftest. Because a lot of times, they don’t research and investigate the cases. MW: Really? PD: They really don’t… Prosecutors don’t know anything… I think that’s part of the reason I’ve been successful in some of my trials. All the trials I have won, I have found that the prosecutors just did not do their work, didn’t do their homework. They are so pompous in the belief that they are right. MW: What’s at the root of that? Why don’t they do their work? PD: Because they just believe the police officer… If a cop comes in and says, “I recovered drugs from him,” [they believe him]... When you start to question the police officers about what they’re saying, their story falls apart... MW: How come they don’t coach their witnesses? PD: Because they think police officers don’t lie. They just have this naïve perception. I think a good prosecutor does do that, you know, like the more experienced ones. And I think if I were going to be a prosecutor, that’s what you would have to do. You would have to be more objective. You can’t just say, “Well, this cop’s not going to lie to me… What happened? Oh, okay, that happened. All right. No problem…”

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You gotta test it a little bit. You know, without disrespecting him… If it doesn’t make sense, it doesn’t make sense. I’ve had a few that have done that. I’ve had some cases that were dismissed because the prosecutor called me and said, “Between you and I, I think the cop’s full of shit, and he didn’t see this guy doing what he says he did, and so, I’m going to dismiss the case.” And that’s a good prosecutor, because you know that when you get that cop up on the stand, he’s not gonna be able to withstand cross-examination. So why waste everybody’s time, keep someone in jail, when you don’t have a good case? But, it happens. [25] More charitable defenders attribute the same sort of thing to sheer laziness. According to one, “sometimes they will not listen to what someone else is saying and they will not investigate thoroughly. Sometimes it’s out of laziness.” [15] Another asserts: PD: Many times, the prosecutor doesn’t take the time to figure out what actually happened in a case so they can work out a disposition. A lot of times, it takes the case being pushed to trial, and then myself or somebody else coming in from our office saying, “Look, this is what happened, talk to your witnesses and they’ll tell you, because I’ve already talked to them about it.” Many times, I’ve talked to the complainants and the witnesses much more than the prosecutor has. MW: Why? Why don’t they do that? PD: Lazy. MW: Really? PD: Yeah. And there’s a lot of cases… It’s hard for them to imagine that the police are lying about some things. Or that the witness is lying to them. Sometimes they figure it out. They come back, “You’re right. My victim’s nuts. Let’s get rid of this thing.” Okay. That happens. But, many of them, they aren’t listening to what’s going on, many times, until it gets close to trial. And we win a lot of cases that should never go to trial. They go to trial and suddenly they realize what an absolutely ridiculous case they have, and we’ve been telling them, “This is a terrible case for you, you really need to unload it.” And they’re like, “No, no, no, it’s fine.” It happens all the time. They get up and the witness starts testifying and they realize they’re done. The witness is lying through their teeth.

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Public Defenders MW: Why don’t they realize this? PD: I don’t know. They’re lazy. [23]

There are also public defenders who allege that close collaboration between the police department and the prosecutor’s office results in misplaced priorities that compromise the prosecutor’s obligation to seek justice. According to one attorney, this is particularly apparent in cases where clients harm police officers: “Let a cop get hurt on the job by one of these guys, they want to kill your client! They’re out for blood! A cop gets hurt on the job? They want blood! Fuck what the crime is! We want time!” [33] In the remarks that follow, two defenders suggest that the harsh prosecutorial policies that disturb them are at least in part the result of an inordinate and inappropriate police influence: MW: How about prosecutors? Do they treat your clients fairly? PD: Especially in drug cases, these prosecutors sit in a room with their undercovers and say, “What do you know about this guy? Is he out on the street selling?” So the prosecutor won’t offer him anything because the cops think he’s out on the streets selling. So they get a police opinion about crimes they can’t prove and it’s included in the charge to make it more serious. They operate as a team. They have their own agenda and it’s not always in the interest of the public, and certainly not the client. I’m not saying it happens in every case with every prosecutor, but it happens frequently enough so you think it has little to do with the interest of justice or the interests of the community or how the interests of society might best be served. [14] The cops run the prosecutor’s office here. They absolutely run it. Pre-screening is very, very strong. [The chief prosecutor] will not do anything to upset even the lowest little cop on the food chain. If a cop brings a shitty case to a prosecutor in [other cities]- I have friends who are attorneys in these placesthe prosecutor will say, “Look, this is shit. I’m not prosecuting it. And they dismiss it or whatever and it’s done. That would never in a billion years happen here. Because [the cops] will bring a shitty case to the prosecutor and what the prosecutor should do, because he’s the attorney, is say, “Look, this case sucks. Here’s why it sucks in case you don’t want to have it happen again. You can’t stop a guy for no

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reason.” He should explain the law to them and say, “This sucks, I’m not prosecuting it, and if you give me a good one, then I’ll do it.” But here, they won’t do it. Here, they will basically look at the case and if it stinks, they’ll maybe make you an offer factoring in the fact that it stinks. They will actually do this, and it’s outrageous: consult with the cop about what offer to make. They’ll talk numbers- in [prison terms] with some cop! It’s ridiculous! You can’t make a move without talking to these individual morons. That’s how they evaluate their cases. They’ll never… say this case sucks. They will never try to educate them. They will simply mop up their messes. Time and time again. And it fosters an atmosphere. Why would they want to learn anything? [46] Some public defenders even go so far as to argue that there are times when prosecutors know or should know that they are taking action against innocent clients. Although these defendants were arrested without justification, the argument goes, prosecutors might try the case anyway, or attempt to pressure a client into pleading guilty by threatening to go to trial, or institute formal proceedings against a client as an informal sanction. This may happen, for instance, in drug cases: It’s common in drug cases. What will happen is that a woman has a job, a friend will move in, and she may think, “Well, I don’t know what he’s doing.” And she has two kids and she doesn’t sell any dope, she doesn’t see any dope. The cops will bust in there and they’ll arrest her. And the prosecutor will not make it go away. The prosecutor will offer her a deal. She should be offered a nothing. And often, they’ll go into a drug house because they bought drugs there a week ago. And they’ll go in a week later and there’ll be ten people there. A week. These residences in the city turn over in a week, often. And they’ll arrest everyone in there. And what will happen is the prosecutor will know that most or all of the cases can’t be prosecuted. But the prosecutor will not say, “I’m dismissing it.” They will offer a misdemeanor. A plea to something. And that puts the client in a difficult position. The client’s like, “If I lose, I go to prison.” You can tell them that seven things have to go really wrong for you to lose and then you’ve still got an appeal. But tell that to a woman with a kid, or some 18year-old kid. I mean, they’re going to do whatever they can. And the next time they get arrested, the prosecutor’s going to

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Public Defenders say, “Look, he’s got a criminal record.” It’s just ridiculous! [46]

Some defenders contend that this also happens with domestic violence cases involving orders of protection; one attorney asserts that prosecutors will often let these cases lie around until they are dismissed in speedy trial grounds. [44] Consider in addition the following remarks: PD: The domestic things are tough, because the women now have learned how to use orders of protection against these guys. So, a lot of those are trumped up. Totally. There’s an order of protection requiring that they have no contact. She calls him up, starts yelling at him, then calls the cops up and says, “He threatened me.” That happens so many times. And so, if it’s domestic cases, I’d say it’s 50-50 or less that they actually did something. A lot of times they didn’t do anything. MW: I guess what you’re saying is a lot of times your clients really are innocent. PD: Yeah. A lot of this domestic stuff, when they tell me, I say, “Look, I believe you. This happens all the time. Okay, so tell me what happened.” All right, all right. “I just want you to know I see this all the time, so if you tell me that she’s doing this, I believe you.” The only time I don’t is when I get police reports saying the cop was there and so was the guy. Those are easy enough. [23] MW: How often does it happen that someone who you believe is innocent gets dragged into the system like that? PD: A lot… Non-violent felonies much more. Much, much more…You would see people get accused of things by family members- domestic cases, all kinds of stuff like that where people have an axe to grind. And gee, the criminal justice system is just beautiful. Orders of protections are just great weapons against individuals…. It’s just incredible how these things get used as weapons by people at that level. [10] Two defenders, the first of whom has long been involved with women’s rights advocacy, even charge that innocent defendants are from time to time prosecuted for serious sexual offenses. I have learned in this job that rape is the most lied about crime and women just use it and manipulate it and this position of

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the women’s movement to strengthen rape law- I’ve come to realize that this is such a scandal most of the time. It is lied about and used as a manipulative tool in relationships. People in the women’s movement won’t say that, but I will. [37] The ones that trouble me are a lot of the sex crime cases or domestic cases. The cases where people get arrested because someone says something happened. Now, the cops aren’t really in that. There’s nothing they can do to push that case one way or another, unless they soup up a statement or something like that. But the prosecutors know that a lot of those cases are complete crap. But it’s a rare prosecutor that’s got the courage to call it what it is. They’ll know. You can tell by the look in their face, the tone of their voice and the offer they make that they know it’s horseshit. But they will not, or rarely, make it go away. So they know they have cases they can’t prosecute. They have cases where they strongly, strongly suspect the allegations are 100% false that they won’t make go away. And the justification that they’ll give you is, “Well, we can’t ever be sure, and I can’t put myself in the place of the complainant. Who am I to completely say that this is nonsense? I should let them tell it to a jury.” I can understand that, to a degree. But some of these allegations, the defendant’s given the evidence. He’s never even subjected to the jeopardy of having a jury trial. So, you get accused, you just go to trial. Well, you sit in jail until you go to trial. Maybe you can’t go back to your house while this is going on. There are so many innocent people in jail. Everyone knows that. The system doesn’t work perfectly. So, you say go to trial. Well, you go to trial! Jesus! It’s easy to say, but it doesn’t mean it’s going to work. It’s not a truth telling machine! [46] PARADOXICAL VIEWS? In addition to complaints that prosecutors lack compassion, abuse their discretion, are ethically compromised, judgmental in nature and indifferent to justice, public defenders made the following bold assertions: My number-one enem[ies] are prosecutors. [48] We’re the good guys; they’re the bad guys! [37]2 I hate prosecutors! I hate prosecutors! [12]

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It bears repeating, however, that almost every defender in some way acknowledged that in addition to those who trouble them, there also exist fair-minded and professional prosecutors; one stipulates that “there are definitely decent prosecutors out there who do the right thing,” [27] while another maintains that prosecutors treat clients fairly “more often than not.” [24] Even the attorney above who “hates” prosecutors later suggested that “it’s not like I have no respect for them, because I do have respect for what they do,” [12] while the one who proclaims “we’re the good guys, they’re the bad guys” also states that “on an individual level, my experience with prosecutors is that they are decent human beings, reasonable, fair, they want to do the right thing.” [37] Even some of the most passionate defenders interviewed for this study acknowledged that there are in fact well-meaning prosecutors; according to one, “a couple of them over there are normal human beings, they really are. No, more than a couple. Quite a few are all right.” [46] Others maintain: Some are more gung ho than others. Some are easier to deal with than others. Some have a more realistic outlook on what’s going on. There are prosecutors who know which cops are lying sacks of shit and which aren’t and will act accordingly and correctly. There are some that don’t care and will follow the strict line and never go against a cop and things of that nature. There’s a wide variety. [29] I think people who have done [prosecution] long enough begin to come to the realization that it’s not all good guys and bad guys and it’s not all victims and perpetrators. Somebody who is today’s quote-unquote victim in this case is yesterday’s defendant, or will be a defendant next week. And you can’t get too high and mighty or sanctimonious if you’re going to come in next week and be judgmental against that person. I think after a period of time, prosecutors, some prosecutors- at least the ones that have some kind of soulbegin to see that it’s not all black and white, it’s not all good and bad. There are many textures and shades to it. And that’s really what defense attorneys come to this believing. It’s not something they learn. [4] A few defenders actually agreed that the good prosecutors outnumber the bad. In the words of one:

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There are those prosecutors who really do get it. They get that sometimes people are wrongfully accused. Sometimes, even if they’re rightfully accused, they shouldn’t really be punished for it, more than making them come to court once. And I think there are more of them than the other kind. [42] A similar example is the defender who argued that “overzealous” prosecutors were a “minority” and that there are “prosecutors who try to be fair, and who are concerned with defendants, who are concerned with drug abuse or mental health issues. Some here are concerned with that.” [7] One prosecutor-turned-defender even pointed out that prosecutors fulfill a useful societal function: You know, [prosecutors] do a good thing, too. They do represent the people. Those are the families. Those are the victims. They’re the people. They’re really suffering. And they rely on the prosecutors to seek justice, and to get justice. So I have no qualms about what they do. [2] Agreeing with these sentiments are the attorneys who admitted that upon occasion they too became angry about crime and criminals. The defender who declared that “we’re the good guys, they’re the bad guys” also made this statement about the prosecutor’s role: “I know it has a purpose. It needs to be there, I know that from an intellectual point of view. And I’ve been victimized myself, and I tell you, if they caught the guy, I’d be a strong advocate to put him away.” [37] Another attorney affirmed that “there is a part of me that likes to put people away. Punish people for transgressions. I’ve had pro-death penalty feelings, for example. Feeling that anger… Putting people in jail to punish them for crimes.” [26] Consider also the following examples: There are some people who I actually believe need to be in jail or need to be in prison. If you’re out there, like, hurting people, robbing people, shooting them, stabbing them, taking their property, and things like that, or assaulting people, then you don’t need to be on the street. And, it’s satisfying also to know that these people are going away and to know that they’re where they need to be. Let them be in a controlled environment, away from the street, and let the streets be safer. [8]

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Public Defenders I mean, there’s that prosecutor in me. Honestly, if I woke up and somebody was in my house, my first instinct would be, I want blood, I want him prosecuted, blah blah blah. Hopefully, I’d get beyond that. I’d want to help. But I know that there’s that issue. I mean, I’ve gone ballistic on somebody who doesn’t use their turn signal! [Laughs] [38]

A few public defenders even went so far as to say that they could imagine hypothetically working as prosecutors (although the attorney above was not one of them). As a way of evaluating how public defenders felt about prosecutors and the prosecution function, almost every interview addressed whether the defender in question could ever imagine working as a prosecutor or- if they had already done sowhether they could ever imagine working as a prosecutor again; several of the responses to this question have already been sprinkled throughout this chapter. Not surprisingly, a number of those who thought they could do this were in fact former prosecutors. One even expressed a preference for this kind of work: “I’ve done solo practice. I’ve prosecuted. If I could pick any job to be doing, I would be prosecuting.” [19] Another maintains that “I could do it again. I could be a prosecutor tomorrow. It wouldn’t bother me in the least. I think I would be a better prosecutor now after having done defense work for so many years.” [47] One last ex-prosecutor maintains that lawyers are advocates who should be able to argue cases as a prosecutor or as a public defender: Oh, I could do it. It’s a job. Like I told you, it’s a job. If you are going to go in there and you say, “I am going to represent my client zealously or I am going to represent the State zealously,” and everybody just does it right, and there’s a judge who looks at both sides, I could do it. [17] A few defenders who have never before done prosecution work expressed similar views; according to one, “It’s a job. Like anything else. I think that if you’re a lawyer, you should be able to work both sides of the fence.” [39] Consider, finally, the comments of the following defender: MW: Could you be a prosecutor? PD: Could I? I don’t see why not…. I think you could flip that on and off easily. I think more people find it interesting when a defense attorney might want to do prosecution work, when every prosecutor who leaves that office, they go into

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private practice and become defense attorneys and no one has any problems with that. There are a lot of defense attorneys who could never do it. It might be a little difficult at first, but ultimately, once again, it would be the game. There would still be the game to play. You just play it with a different set of rules. [40] All this notwithstanding, it must once again be emphasized that the views expressed by public defenders were wide ranging and in some cases incongruous. The defender who stated a preference for prosecution, for instance, set forth conditions for this sort of work that might be difficult to meet: I’m not one of those people that couldn’t work the other side. I loved working the other side. But part of why I loved it- I didn’t work for a big office where somebody told me what to do, I handled every case by myself. And you can do justice. You can impact on the system. You can effect changes. You could keep the cops honest. You could teach the cops, if you’re in a prosecutor’s office where you’re not just a cog in a wheel. [19] Likewise, for the ex-prosecutor who felt that as advocates, attorneys should be prepared to accept either role, the absence of autonomy at the local prosecutor’s office makes working there unimaginable: MW: You worked at both sides of the coin- both prosecution and public defense work. Could you go back to being a prosecutor? PD: I don’t think I’d want to, but I could. MW: Why wouldn’t you want to? PD: I like what I do. And I wouldn’t want to do it here. I don’t like this office. I don’t like the way [it] is set up. And I also know that a lot of the people who are given positions of authority in this office… are put in positions of power because they happened to stick it out or somebody likes them, and I just don’t want to work under that kind of pressure. [17] In fact, 37 of the defenders who addressed this issue indicated that prosecuting was for them completely inconceivable or highly unlikely. Some merely stated that it was something they could “never” do, [24] or something they “just can’t imagine” doing, [1] or something they

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thought they would not be “suited to.” [22] For one attorney, a career in prosecution was possible “maybe in another lifetime.” [8] Others, including those whose opinions have already been voiced, provided more elaboration. A number of lawyers had particularly interesting responses. According to one, other than public defense, “the only other thing that I could imagine that I would want to do as a lawyer would be [to] prosecute the police for misconduct [or] brutality.” [29] For this attorney, however, it would be unacceptable to prosecute everyday criminal defendants. Another argues that because the American social and economic structure exploits poor people and minorities, prosecuting criminal defendants is something that is morally unjustifiable: PD: If the system were more legitimate…, which is completely unrealistic, then I could be a prosecutor... I’m only unable to be a prosecutor here because, as I said, I find the role of the prosecutor not a legitimate one and I don’t agree with it. MW: I guess what I was going to ask… is if you could have carte blanche to prosecute in the way you saw fit, to use your discretion to see that justice was done, would you do it? PD: Here, no. In this system, no. Because you say if you had carte blanche to see that justice is done- justice is not done in our courts. Aside from those individual cases, where I’m able to tell you, “Yeah, I can help people out,” and I can get a not guilty verdict- justice is done on that level. But in a systemic way, it is not done, and therefore I could not participate in it. [48] Consider in addition the comments of the following defenders, none of whom would think of ever working as prosecutors: Prosecuting never really interested me. It’s an avenue that was available. But it was something, that side of it, that just never really clicked with me. And I know certain people who are assistant prosecutors, and that’s what they want to do, that’s their thing. I just never was excited about taking on that aspect of it. I don’t know why. It didn’t appeal to me as much as this side did. [5] MW: Could you be a prosecutor? PD: [Pause] No. No way. I’d like to think I’d do a better job than the current prosecutor. As far as I’d be far more

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courageous… I mean, I often try to put myself in that position because I’m like, “Ah, fuck. Why do they have to have these policies over there...?” I would definitely do things different. I wouldn’t like it. It wouldn’t be my first choice at all. I would rather see me be the chief prosecutor than [the current chief prosecutor]. Or somebody like me. I wouldn’t, like, relish the work. It’s dirty work, from the perspective of someone who doesn’t like sending people to jail… I wouldn’t want to be a prosecutor… [Still,] I would rather be running that office than [the current prosecutor]. But I’d rather go back and work on a moving truck than do that. [46] MW: Could you go back and become a prosecutor? PD: Again? I don’t think so. Because I’ve always had a defense mindset. You know, I’ve been doing it for so long that I think it would be difficult for me. [2] MW: You had said that when you began [thinking about a career in law] that you thought you’d end up working as a prosecutor. Think you could be a prosecutor? PD: No. Not anymore. I’ve been doing this too long. I think a prosecutor could at any point in his career become a public defender or in private practice become a defense attorney. Because then you kind of think the prosecutor has a different role. The prosecutor has to be fair and honest and to see that justice is done. So…, a good prosecutor, an honest prosecutor will understand what the role of the defense attorney is. But I think a defense attorney- and I can’t quite verbalize it- I think once you’re a defense attorney and you have the heart to be a defense attorney, it’s hard to turn around and to want to put people on trial. To almost arbitrarily decide, well, five years is fair, or nine years for this kind of crime. [27] Interestingly, this defender’s impressions about lawyers switching sides are in part corroborated by Lief H. Carter’s (1974) landmark study of local California prosecutors. Of Carter’s sample of 30 assistant “Vario County” assistant district attorneys, “two-thirds of those interviewed indicated they could imagine themselves having begun work in the public defender’s office instead of the prosecutor’s office, and only four… rejected the possibility of leaving the office to work for the public defender” (p. 47). Perhaps because there is no such thing as a private prosecutor in the American criminal process, many prosecutors

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envision a future in private criminal defense; if this is so, then for them being a public defender might not seem so remote or objectionable a career option. It may be, however, that public defenders have a visceral distaste for prosecution that exceeds that of prosecutors for public defense. This distaste is so strong for some public defenders that they cannot even socialize with prosecutors; they say that the mindset is too different and the animosity too great. To be sure, there are those who disagree with this perspective and point to their own friendships as proof that such relationships are possible: PD: Some of my friends are prosecutors, though. [Laughs] They’ve come to have dinner in my house, and it’s okay. I can be tenacious in court and fight you tooth and nail, and then walk out and have lunch with you. To me, you’re doing your job and I’m doing my job. I’m not holding it against you and I don’t want you to hold my job against me. And it’s okay. But most prosecutors and defense attorneys don’t have that type of relationship… MW: I’ve heard people say that they could never even be friends with a prosecutor. It’s just too much of a different mindset. PD: Well, I think that’s close-minded. I believe you can be friends with prosecutors. I have friends who are prosecutors. They sit down and eat just like you do. So, I don’t have a problem with being friendly with them at all. [8] MW: Some defenders have told me that they could never be friends with a prosecutor. PD: I don’t believe that. I still have friends today, some great friends of mine, who are prosecutors. [2] PD: I definitely get along with all my prosecutors. And some of them are friends of mine and we do go out socially… MW: Some people say they could never be friends with a prosecutor. PD: People say that. I don’t really understand that. It’s a job. I mean, there are gung ho prosecutors I don’t really like. I don’t like working with [them]. But they’re people. They’re doing a job. I might treat them like I would any other prosecutor, and I just don’t hang out with them socially. But, they probably say the same thing about this job: “How can you do that?” [39]

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In the first of the selections that follow, however, one prosecutorturned-defender describes the acrimony that punctuates the relationship between prosecutors and defenders. In the subsequent excerpts, defenders echo this assessment and make their own antagonism clear: PD: Prosecutors don’t like defense attorneys, in general. Defense attorneys don’t like the attitudes of the prosecutors. And I don’t see any socialization. I don’t see any intermingling. I shouldn’t say “any.” It happens occasionally. But no interaction between the two sides. MW: What is it that the two sides don’t like about each other? PD: Perhaps this is too strong a term, but there’s almost like an ingrained hatred. They’re the other side. We’re the good guys. They’re the bad guys. It’s as simple as that, and therefore we don’t want to associate with them. And I think that fosters the attitudes. And there’s nobody trying to break down the barriers. They’re being fortified, they’re being enhanced. And if you have five years of this attitude, and you become a supervisor, and you teach young people, this is the attitude that you portray. [30] PD: Well, we don’t really get to know them personally… most of us would never even consider having drinks with a prosecutor. MW: Really? PD: No. I take it very personally. I can’t really stomach someone who’s trying- imagine having a friend who tomorrow is trying to put [another] friend or relative in jail. I mean, what kind of friendship is that? [34] PD: I don’t have that many friends that are prosecutors… One of my first supervisors in this business once said to me when referring to prosecutors that they are our adversaries and not our enemies and it’s a mistake to look at them as enemies. But some people are enemies. I would say most of them, though, are adversaries. I don’t go out of my way to be too collegial, but I can’t say that there are any prosecutors who are friends of mine, who I would regularly go out for a beer with or something like that. MW: Is that just a coincidence? Is there a reason for that? PD: I think we tend to move in different worlds and different circles and have different worldviews and that makes it

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Public Defenders difficult for people to kind of bridge those gaps. I mean, you do see a lot of personal relationships, romances, and friendships across those lines. So, I don’t know. Those people have different perspectives. [36] For me, I don’t like to [be friendly]. It’s very hard. Even to be friends with them. Because I don’t see how they can do what they do. It just amazes me that they can do it. Are there any prosecutors that I like? [Laughs] I mean, there are people I’m acquaintances with, that I speak to. But I’m not friendly with them. Any of them. No, I couldn’t be... Our philosophies are so different. It’s totally different. I mean, there are some [defenders], I think that they think that [prosecution] is just a job. I say, how can you think of it as just a job? They’re putting people in jail! [25] PD: There are a couple of prosecutors who I consider very nice people and relate to. They’re very good people. I think if they weren’t prosecutors I could actually be friends with them. And those people to me are the ones who are more experienced and who have kind of given up the idea that they represent all that is right in the world and that it’s their job to sort of clean up the world. Because it’s not. MW: You said if they weren’t prosecutors you could be friends with them. Could you be friends with a prosecutor? PD: No. MW: Really? PD: I’ve been practicing for [a long time] and I’ve never been friends with a prosecutor. [Laughs] [4]

CONCLUSION Public defenders, in sum, have some very serious problems with the attitudes and behavior of prosecutors. Yet notwithstanding the variety and intensity of the perspectives, important questions surface once again. Are the more dispassionate and conciliatory statements heartfelt and true, or do they function for some as ceremonial attempts to mask a passion that might appear more intransigent than zealous? Are the criticisms and denunciations genuine, or are they so provocative that they overwhelm a more honest or nuanced evaluation? Indeed, in some places, the same defender has taken positions that have been alternatively conciliatory and critical. Is there something inconsistent in this? It is also true, moreover, that prosecutors and defense attorneys are consigned to adversarial positions by the criminal process itself; a

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certain amount of hostility may therefore be expected. So how is all this to be interpreted? What exactly do public defenders think of prosecutors? Perhaps the best that can be said is the following: Some defenders regard their complaints as typical of most prosecutors and other defenders simply as reflective of many prosecutors. More defenders, it seems, would likely subscribe to the latter view, but quite a few would agree with the former. The following statements, in sum, probably represent rather well the impressions many defenders have of prosecutors: I think most prosecutors try to do what they think is fair to everybody. There are some who I think that doesn’t happen to. There are some prosecutors who I think try and do everything possible to some people, whether they think that’s fair or not. Obviously “fairly” is a subjective word. So there are many people who do things or attempt to do things to my clients that I don’t think are fair at all, though I think they do. And it’s different for different prosecutors. Some take their job very, very, very seriously. Some are lazy. Some are very bright. Some aren’t very bright. You know, like any other group of people in the world. So, that’s about the best answer I can give. [43] There are some really good prosecutors. And I respect them, and I admire them, but it’s not a job for me. And I don’t know why it’s their job. [Laughs] [18] In the end, most public defenders suggest that while it is indeed difficult to make generalizations, the troubling things they observed were too widespread to ignore. What is most interesting, however, is the evocative manner in which so many defenders say the same kinds of things. What is also significant is how much of the existing literature was substantiated by the defenders interviewed for this study; on this point, it must once again be emphasized that these remarks were in response to open-ended questions. Some defenders, of course, may be described as more ardently anti-prosecution than others, but like those who are more or less anti-police, this seems for most a matter of tone rather than substance. Indeed, it seems fair to say that for these public defenders, both depth of their narrative and the recurrence of regular themes in their responses in fact confirm identifiable trends.

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_________________________ ENDNOTES 1 Dershowitz (1982) also believes that “all judges are aware” of this (p. xxii). 2 This proclamation- voiced as a reflection of this defender’s own views- should not be confused with the lawyer [30] quoted on page 241 who observes that many prosecutors and public defenders are instilled with such an outlook as early as their initial training periods, a phenomenon he regards as regrettable.

CHAPTER 11

Anti-Judge and Anti-Corrections Motivations Critical Motivations, Part IV*

ANTI-JUDGE MOTIVATIONS The literature suggests that many public defenders view judges with suspicion, distaste and bewilderment. As Dershowitz (1982) alleges, “most trial judges” are fully aware of police perjury and “pretend to believe police officers who they know are lying” (p. xxii). Judges, in fact, are often described as little more than collaborators who conspire with the prosecution against the interests of the defense. Wishman (1981), in this regard, maintains that many judges consciously act as adjunct prosecutors rather than neutral and dispassionate referees: “many judges were once prosecutors and they sometimes forget that it is no longer their duty to get convictions. A number of judgesadmittedly fewer than a majority- want to ‘beat’ defense lawyers, and are much more difficult to deal with than prosecutors” (p. 206). One of McIntyre’s (1987) respondents agrees with the thrust this point, suggesting that a judge in actuality is “another state’s attorney…, [an] enem[y] I have to deal with… someone who gives heavy sentences regardless of the facts of the case” (p. 147). This defender, however, attributes this to a judicial inability to follow or even understand the mandates of the law they purport to apply. In a much more strident reaction, Eisenstein & Jacob (1977|1991) report that not only do the lawyers of the Detroit Defender’s Association view judges as proprosecution, they consider them to be racist; they claim that “many judges let their anti-black biases color their decisions and deny their clients due process” (p. 156). Defenders have also been critical of what they view as inconsistent and hypocritical judicial sentencing

*

Adapted with permission from “Public Defenders on Judges: A Qualitative Study of Perception and Motivation,” by Michael Scott Weiss. Originally published in the Criminal Law Bulletin, vol. 40, no. 1 (2004). Copyright (c) 2004 West, a Thomson business.

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behavior, something that Kunen (1983) suggests causes in defendants “a great deal of antisocial rage”: Sentencing is the least just, most arbitrary stage of the criminal justice system. Different judges give widely varying sentences for the same offense; even the same judges give different sentences for the same offence to different defendants; sometimes a trend sweeps through the courthouse and all the judges start hitting harder, as when a high profile murder has aroused the community; at other times, they all lighten up- around Christmas, for instance. (pp. 105-106) Pro-Prosecution Judges Although no one was asked about it directly, a number of defenders interviewed for this study in fact maintained that judges tend to be former prosecutors; one argues, for example, that “judges are exprosecutors. They call the prosecutor’s office ‘Judge School.’ A disproportionate amount of judges have exclusively prosecutorial background.” [46] Two defenders even went so far as to claim that judges consciously view themselves as members of the law enforcement community; in the first of the exchanges that follow, one attorney offers as evidence judges who pressure clients to plead guilty in order to dispose of cases quickly; in the second, the focus is on outright collaboration with prosecutors and police: PD: For the most part, I think they are identified together as law enforcement. Court officers, police officers, judges. Quite frankly, I think judges are included in the law enforcement aspect. MW: Really? PD: Oh, yeah. MW: Because many of them have this past prosecutorial experience? PD: I think so, but I think it’s also the way their job is viewed. MW: By who? PD: By judges and by court personnel. [They say], “I have to get through cases.” Particularly, “I have to get dispositions.” Everything is about, “I have to get dispositions.” That puts them as part of law enforcement. “We’re looking for stats, and you guys have to plead guilty for us to get stats.” [17] This government of police, prosecutors, judges- I can’t tell you how many times I hear them at conferences saying “we.”

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“We have to get the defense lawyers to think about this differently.” Holy shit! This is a judge talking! That “we”- the judge, the prosecutor and the cop- have to get these defense lawyers to think differently? That’s really, really scary stuff. [35] Just as the literature suggests, moreover, many defenders allege that while there are of course exceptions, judges as a general matter favor the prosecution and do not treat their clients fairly. One attorney simply maintains that judges “have a prosecution orientation,” [15] while another contends that “they are more sympathetic to that side… I think the prosecutor’s side is viewed as being the ‘good’ side, as opposed to the ‘evil’ side.” [17] Consider also the following remarks, the first of which is a particularly sarcastic take on the issue: Somewhere in here in the criminal handbook in invisible ink there’s a little section that says, “Unless the prosecutor wants it.” There’s a special subdivision. “We can’t do this and we can’t do that except for that special little provision in the statute, which is ‘except if the prosecutor really, really wants it,’ or it’s really important to their case, then we can blow by that.” So most of them are probably prosecution-oriented. But a couple of wonderful examples are known as being fair. I can’t say I’ve ever been in front of a judge who I would say is defense-oriented. But the fair ones are all we can ask for. [10] MW: What’s something about your job that you didn’t expect when you first got into it? What did you find out about this kind of work that surprised you? PD: It surprised me that judges have an interest in the outcome of a case, other than judging. Judges do what they can to get a conviction and they have a feeling that they failed somehow if they don’t bring one home. And that judges would help prosecutors prosecute cases. [24] A number of public defenders employed more specific illustrations to demonstrate the pro-prosecution bias they perceive in judges. Several argue that in practice, judges often fail to afford criminal defendants the presumption of innocence and assume defendants are guilty. Indeed, the lawyer below declares that because of this, “our job there is to intervene and fight for that person, which needs to be done”:

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Public Defenders Well, the law is far from perfect, and the reality is that most people are presumed guilty by judges… I’ve had cases where people get things dismissed for one reason or another and the judge will still give them a speech, “Well, next time,” or “You got lucky this time,” or stuff like that. If in their own mind, this person was innocent until proven guilty, they wouldn’t make such speeches. And that’s sad. [38] MW: How about judges? Are they fair with your clients? PD: Most judges- they’re more toward the prosecutor’s side, in my opinion. There are rulings- of course, there are exceptions- but there’s an assumption that everyone who comes there is guilty. Judges over the years I’ve seen really want a conviction. They assume the defendant is guilty. I’ve seen judges get pissed off when there’s an acquittal. I’ve seen it numerous times. To me, that doesn’t seem objective. [22] More often than not, I would say that prosecutors and judges will read a complaint and just assume that your client did it. Even though there’s a presumption of innocence, I don’t think that really holds true, especially when you get a person that has a significant criminal record. “They’ve done it before, maybe they did it again.” And there’s ample theory that maybe this time they didn’t do it. Maybe this time the cops set them up because they know they’re not a good witness, they know they can’t testify, they know their criminal record is going to work against them. [39] I mean, they help the prosecutor so much! We have a much harder job. Because you often have a judge… who already in their mind has decided that your client is guilty. Having heard no evidence, they just assume the prosecutor is telling the truth, they know everything. [25]

A few lawyers even charge that judges disregard the law because it suits their pro-prosecution preference: MW: What was there about this job that surprised you? What did you learn once you started working here that you didn’t know before you became a public defender? PD: One of the most surprising things to me was that it appeared that judges simply ignored the law. I thought you had the facts and you had the law and you applied it. [37]

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PD: That’s why actually this job can get really frustrating because sometimes, I know I’m right! Sometimes, I write a motion that’s so painfully obvious that I could draw a picture and the judge won’t say yes to it. MW: Why is that? Do judges treat your clients fairly? PD: I think that the judges I’ve had, the majority, tend to be pro-prosecution, but also tend to just miss it. And maybe I’m just being obnoxious, but issues that are just so clear to me are so overlooked. [45] MW: What would you say are some of the worst things [about being a public defender]? PD: The worst thing is when there’s just lawlessness. There’s Judge_____, for example. He practices in the lower criminal court, and poor people come in who can’t afford to pay fines, and that’s just against the Supreme Court law, Bearden v. Georgia, which says you can’t do that. You cannot just put someone in jail because they can’t afford to pay a fine. There has to be a hearing, they have to be afforded rights. That’s the worst thing. MW: So what happens if he’s flagrantly violating a Supreme Court holding? PD: He does it all the time. He does it all the time… Judges who don’t even read your motions and couldn’t care less. Stupid judges. Stupid judges who don’t read your motions and prosecutors who don’t even file responses to your motions, not citing any law. There’s no due process. Where judges just act based on what they think is the right decision. MW: How typical is that? PD: Very typical. Very common. Absolutely. Or a judge who doesn’t give your client a fair trial. [34] This perception that judges are unfair to their clients at trial is something that disturbs several other defenders as well: I think that the number of judges [in this city] who are neutral and will give you a completely fair trial, you could probably count on the fingers of one hand. You don’t need three hands for it, I’ll tell you that. [36] Sometimes you get a fair trial. One out of three. The rest, you’ll be fighting out of a hole. The judge has your guy down,

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Public Defenders and he keeps you down. From start to finish you got a problem. One out of three, the Constitution isn’t relevant. [26] MW: Do judges treat your clients fairly? PD: Some judges have an agenda… to help the prosecution generally. Often times, you’ll hear defense attorneys say when you go to trial, there are two prosecutors in the courtroom. Judges don’t like our clients. [37]

Another argument is that in court, judges tolerate police lies and admit evidence that they know the police obtained unlawfully: It really doesn’t exist, search and seizure. [The police] are allowed to do whatever the fuck they want. Occasionally a judge suppresses something, if it touches a nerve. But they let everything in. They figure out some rationalization for it. They’ll always find in favor of the cops. If the defendant has a really plausible story, occasionally you’ll win. I could die. It could kill me every time you lose all those things. [26] They know. You know these judges know. You can see the look in their eye. But very few of them will say, “I don’t credit the officer’s testimony.” [46] That’s why there was this controversy a couple of years ago, there were some articles in the paper, about the police being called on to testify, and they referred to testifying as “testilying.” And it was a joke. “Testi-lying” is rampant. It’s just rampant. Because the cops know that the judges will accept anything. It’s really a rare occurrence when a judge says, “I don’t believe that police officer, and I’m suppressing this or I think there’s no probable cause to support the arrest, and I’m dismissing the case.” [36] MW: Do judges treat your clients fairly? PD: Not all judges, no. That’s one of the frustrations, one of the things that helps build up that, “Oh no, I shouldn’t be doing this” [thought]. Things like judges automatically believing the cops. Even when you know really that they’re lying. And it’s almost a charade, unless there’s some really unusual set of circumstances or really some strange case. It really is a charade these days. They’ll appear at a hearing on the voluntariness of the defendant’s statement. There’s just no

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chance that any judge will ever find that a cop is lying. That sort of thing is really upsetting. MW: Why is that? I imagine the same holds for suppression hearings for physical evidence? PD: Oh, true. It’s just that in those kinds of hearings, there’s more chances that they screw up and you can establish the illegality. And so there’s still an extremely small, but larger chance of maybe even winning a suppression hearing based on Fourth Amendment grounds. With statements, there’s almost no chance. But yeah, the complaint that judges are routinely crediting cops even though they’re saying ridiculous or incredible things- “The seatbelt is the reason we stopped him”- all that kind of stuff, the plain view bullshit, it makes you angry at judges across the board when they do that. [48] A few defenders go on to explain that judges are willing to knowingly countenance perjury and procedural irregularity in order to avoid freeing defendants who are factually guilty of appalling crimes. According to one, they do this even though “the whole notion of deterring illegal conduct on the part of law enforcement and prosecutors really goes out the window. But I guess they don’t really care.” [48] For judges too, however, “the ends justify the means.” [41] As another defender suggests: The system is getting worse instead of better. Judges look the other way. They know the game is on. The judge should sit there and have the courage to say it didn’t happen that way: “I don’t believe Officer X and the gun is suppressed.” But they don’t. [35] One appeals lawyer elaborates on this point by describing how trial court judges tolerate prosecutorial indiscretion and appellate court judges look the other way on appeal: Well, prosecutors, often in their closing arguments, make inflammatory remarks during their summations to appeal to juries’ sympathy for the victim to lead them away from focusing on the evidence presented at the trial. That happens all the time. It makes it very difficult for defendants to get a fair trial. Prosecutors frequently do that. [Trial court] judges, and judges on the appellate court, don’t seem to care about that. They always say, “Well, the words were probably better

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Public Defenders left unsaid, but we feel that they don’t deprive the defendant of a fair trial.” So, that happens very frequently. [16]

This defender regards the above as just one illustration of what he evocatively labels the “terrible guy” exception to the proper application of the criminal law, something he defines as “you can argue what you want, the rules are not going to apply to you”: MW: What is there about the job, the work that you do, that you didn’t realize when you got into it? What surprised you? PD: [Pause] I would say that even when I’m right I lose. I didn’t realize that. There are instances where I’m right on the law, my client should be having a new trial, but I lose anyway because the judges don’t like my client. They don’t like the end result. MW: Is it because they don’t want to reverse a trial court judge? PD: That’s part of it. Or, they don’t want to give this particular defendant another crack at a trial, because they don’t like what this guy has been convicted of doing. Like committing a horrendous crime against a young child. It’s almost an exception to the rule of law. The “terrible guy exception” to the rule of law. And it happens. MW: Really? PD: Yeah. Depending on the judges. MW: But at the appellate level, I wouldn’t think it would be so much political. PD: Yeah. They’re insulated from that. MW: So what’s going on? PD: They just have empathy for the victims or the witnesses involved. Not wanting to put them through it. And they don’t want this criminal defendant to be given the opportunity to be free, giving them another crack at a trial. [16] Political Considerations and Judicial Ambition The pro-prosecution mindset complained of by many defenders is often attributed to the political interests of trial court judges. Some judges, it is alleged, owe their position to their connections, not their talents. Judges who face re-election or hope to move on to a more prestigious posting are worried that if they give defendants a fair shake, the media will condemn them for indulging criminals; on the latter point, one defender stresses that “judges certainly don’t get appointed to the appellate level because they’re soft on crime.” [41] Professional

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ambition, in sum, leads judges to favor the prosecution; it is not likely, after all, that a law and order judge will be lacking political support: I’m always amused when I read in the paper, [the tabloid newspaper], and they will fulminate about judges who are so liberal and they go on and on. And that’s not the experience of anyone who works in the criminal justice system. Anyone who has any intellectual honesty, even prosecutors, will tell you that. Well, I don’t know. They probably believe that the judges are unfair to them. It’s such a ludicrous idea that judges in this day and age are trying to let people out, or let people off, or coddle criminals, or anything like that. I find that most judges these days are so scared of ending up in the newspapers that they are completely intimidated into doing anything that the prosecutor wants them to do. [36] Being a judge is very political… Being a judge has nothing to do with how bright you are or how much you know the law. It’s about who you know. And so you find people with political appointments… who are not suited to the job and don’t have that kind of mind and have to fudge it… We know who’s bright and who is affording the client due process and who is just a total muck of a judge but they still get to continue in what they do and sentence your client and most judges are like that. Most. Most judges are just former prosecutors or an extension of the prosecutor’s office and it’s the rare occasion that you have a judge who will give your client a fair chance. Nowadays, the minute that a judge does something, it’s in the papers. And they can’t afford that, to make that mistake. It’s so much easier to listen to the prosecutor. [34] MW: How do judges treat your clients? PD: My basic feeling is that most judges are just another prosecutor in the courtroom. They are very conservative. Their greatest fear is seeing their name in the newspaper and being yelled at, being admonished in the press. Their second greatest fear is being reversed, and their feeling is that in this time and this age, as long as they go along with what the prosecutor is saying, they’ll never be criticized. [30]

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Public Defenders MW: Do judges treat your clients fairly? PD: Most judges I’ve seen, today anyway, are proprosecution. Only because they have to be. There are newspapers looking over every decision they do, and looking to criticize them. I think judges are afraid to sometimes do the right thing for a defendant, thinking that there’s going to be a backlash, that they’re going to be perceived as soft on crime. You know, sometimes judges just make a decision that’s fair. It’s fair, and it benefits a defendant. That doesn’t mean they’re being soft on crime. They’re just following the law. I think more often than not, they’re fairer to the prosecution. I think more often than not, today, judges bend over backwards to help the prosecutors. MW: Because of political reasons? PD: Yeah. Yeah. There’s a lot more press, there’s a lot more politics involved with judges today. I don’t think they’re as independent today as they were, say, 20 years ago. [2] Judges are political animals, up for re-appointment, elections, review. The safest way for them is to take a prosecution stance, help the prosecutor and keep guys in jail and not be replaced. [26] Judges don’t like our clients. They don’t want our clients to go out on the street, they run for office, and it’s not a particularly popular decision to promote the rights of the accused. It certainly doesn’t get you votes. [37] MW: Do judges treat your clients fairly? PD: For the most part? I don’t think judges are fair. I think… they really only see, there’s only a teeny-tiny percentage of people they see that are not indigent and don’t have court appointed lawyers, so they treat everybody across the board the same, but I don’t think it’s necessarily fair or just. MW: What’s unfair about it? PD: I think a lot of them were prosecutors or feel they need to help the prosecutors. I think it takes a brave judge… to step up and suppress evidence that legally should be suppressed. I don’t think a lot of times they follow the rules, because they’re worried if they do that, they’ll throw a case. So, I think you fight against the judges also. And sometimes when you have it, it’s clear, it’s right there, you have to suppress the drugs, it’s illegal- and they don’t do it, because they’re scared.

Anti-Judge and Anti-Corrections Motivations They’re scared they’re going to be the next one in the front page of the [tabloid newspaper]: “I let this person go…” And the judges are power climbers, too. They’re not happy just, “Oh, I’m sitting here.” They want to move also. They want [more prestigious] appointments… Or whatever it is that they’re looking for. They want to move from [misdemeanor court] to [felony court]. So they never want to make anyone, especially in the prosecutor’s office, unhappy. They always want to make sure that the chief prosecutor is not running into them and saying, “You’ve been bad. Very bad. You were yelling at one of my assistants.” So, I think we get yelled at a lot more than they do. And as a result, our clients are the ones who suffer. So, no, they’re not treated fairly because [the judges] love to protect the prosecutor’s cases. [18] The judge is not supposed to be representing anybody, except for being impartial, making a decision without outside influence, as to what’s going on, the fight between the two. And that’s not the case. The judge has become more concerned with, “What are they going to say about me if I rule wrong.” [17] There’s the ambition thing. You can’t insist on doing the right thing as a judge without getting political fallout. And therefore, many judges don’t bother doing the right thing at all. [48] I would say that as far as judges are concerned, most of them don’t have a lot of power, and are not willing to take a lot of chances, and side with the prosecutor more often than not. Part of it is because they have a prosecution orientation. Part of it is because they’re afraid of political pressure, or public scrutiny, if they put a criminal on the street. So I think that judges like to play it safe. [15] [Judges are] also elected officials. And they worry about things. No one wants to be the judge who doesn’t put an order of protection on someone who then goes out and kills somebody. No one wants to be the person who sets an insufficient amount of bail in a case. So, unfortunately, judges- they think too much about themselves. It’s a rare person who does the right thing in every case without

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Public Defenders thinking, “How does it affect me.” That’s what a judge should do. In theory. The ideal is the judge who decides each case based upon that, not, “Jeez, I’m up for election in two years. Maybe I’ll run again, maybe I won’t.” That’s the reality of it. [Pause] So, that’s why there’s no justice. And of course, the cops. [46]

This defender also observes that judges occupy a prominent and privileged social position that may be at the root of their outsized political ambition and argues that for some, the quest for status, salary, and reputation far exceeds their interest in judging fairly: PD: They like being judges and going to functions and wearing the robe and having the control… but they have no passion for the job. They get upset when your client doesn’t make a deal, because then they have to do a trial. And then they take it out on your client when he exercises his constitutional rights. And they get nervous and they don’t like making decisions. Why the hell are you on the bench? Get off there! MW: Why are they there? Status? PD: Yeah. Oh, yeah. Definitely status. After you’re a prosecutor, then what do you do after that? You go into private practice or you became a judge. I think that’s the way they think. They want what’s the next logical thing. That’s what they do, whether they like it or not. A lot of it is to be a status symbol. A lot of them are just lazy and timid, they don’t like working. They don’t like making decisions. And they’re in a job where you have to be bold. And for the life of me, I can’t figure put why some of them do it. [46] Others suggest that these aspirations make judges an overbearing courtroom presence and reveal an unhealthy need to exercise authority over others. All this may be intertwined with a pro-prosecution bent; one attorney observes that “you’ve got judges who abuse people. And they tend to abuse defense attorneys and defendants more than they do prosecutors.” [19] Consider in addition the remarks that follow: MW: Why do [you say that judges knowingly credit false police testimony]? PD: [Pause] Because probably it has something to do with why they want to be judges in the first place. You can’t be a judge unless you are somehow a person who has a self-

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interest, interest in money and all that, and you’re the boss and you get control over everybody, I think there’s a personalityMW: Is it like an arrogance thing or a bully thing? PD: Many judges, yeah. Not all, but many. [48] Sentencing: Insufficient Discretion and Lack of Compassion Defenders also allege that, like police and prosecutors, there are judges who lack compassion for clients and fail to recognize that although defendants have been accused of crimes, they too are human beings. In particular, notwithstanding Kunen’s accusation that judges frequently impose widely disparate sentences even for the same kinds of offenses, several defenders criticize judges for treating defendants alike despite the circumstances of their crimes and the conditions of their lives. According to one attorney, for example, “it’s… frustrating when you see that judges are not sensitive to people’s needs or circumstances, mental health issues, cognitive disabilities.” [7] Another maintains that judges are indifferent to bad lawyering because they are interested in little more than disposing cases and processing defendants: “sometimes I think judges know that the lawyers are not doing their jobs, and they just don’t care. It’s just about processing people, [but these are] human beings. That’s what upsets me.” [34] Above all, there exists among many defenders a sense that judges are reluctant to consider factors that might mitigate the seriousness of the charged offense and the severity of the stipulated punishment: MW: What are some of the worst days you’ve had? PD: Mainly, I find that [this jurisdiction] is very conservative by my standards and… I find that some of my judges I think are just too harsh and not as interested in seeing social justice done. On both sides. I mean, I think it could be on the part of the victim, too. Sometimes, I just feel there’s a lack of sensitivity to the nature of their job, which is doing justice. So those are the bad days that I have. When I perceive that the judge is in a bad mood and thereby punishing the world and not paying attention to the cases in front of him or her and giving too much jail or just not listening to what the right thing to do in a case is. Those are bad days. [12] MW: Do judges treat your clients fairly? PD: Not all the time. Sometimes, yes, I think they try to be fair. Because, if you’re a judge and you see a hundred of these

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Public Defenders types of cases a day, just in one day, you may think, “Okay, I gave this person 15 days, I going to give this person 15 days.” But, in my mind, my client doesn’t deserve 15 days because of X, Y and Z. Maybe Client A did deserve 15 days, but my client doesn’t because of different circumstances. But the judge may say, “Nope, 15 days for that one, 15 days for this one.” So most of the time, they treat them fairly, but some of the time, I think, they need to look at the individual instead of just the individual’s crime. [8] PD: I think the abuse of power and lack of accountability on the part of the local judges… The absolute disregard- in many instances, the complete and total disregard- for mercy. Justice, even. I see much of what they do as complete injustice. And the problem is that I don’t think- there is no accountability there. When a judge says, “This is exactly what I do in these situations and will not vary from that.” And it is an unreasonable stance, in my opinion, and I see that as completely unjust. It makes no sense to throw somebody in jail for 15 days on their very first offense. A first time [minor offense] should not be something that somebody sits in jail for… and usually loses their job; if they’re in school, they get behind in school. It makes no sense. It’s unjust. And that is what a particular judge [here] does. MW: They’re unable to take into account exigencies and mitigating circumstances? PD: Exactly. Exactly. Nor is there any review of that. Ever. [42]

This attorney, in fact, regards dealing with this sort of judicial behavior as the worst thing about being a public defender: MW: What’s the worst thing? PD: [Pause] Dealing with that- we talked about injustice on an institutional level- it’s dealing with judges who have way, way too much power, in my opinion. And having my hands completely tied. I hate that feeling. When a judge decides, “I’m going to put this guy in custody right now. Because I can. And because he failed to appear. And, no, I don’t want to hear why he failed to appear.” I get depressed. I get down. And I fight with the judge, you know, I do what I can, but it’s a losing battle. I don’t like that. I don’t like the losing part of it. And it’s only when it’s a real injustice. When I see a guy

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getting sentenced to a year, and I know I fought for him, but the fact is he’s got a sheet like crazy, that isn’t what gets me down. It’s when this person who’s committed one crime in his life is going away for 15 days for no reason. Those kill me. Those kill me. They’re the worst part, I think. [42] What is interesting about this, however, is that while they might prefer more lenient dispositions, many defenders nevertheless recognize that to some extent, judicial discretion is circumscribed. Penalties are associated with charged offenses and it is the prosecutor, not the judge, who renders the formal accusation. Cognizant of the fact that so many of their clients are prosecuted for narcotics offenses, moreover, several defenders argue that drugs should be legalized, thereby acknowledging that there are convictions and sentences that reflect the political choices of legislators as much as the courtroom decisions of judges. In the remarks that follow, for instance, one defender is clearly frustrated with what he regards as an unreasonably strict criminal code, particularly- though not exclusively- when it comes to the existing drug laws: People go to jail for things that should not be crimes. Every other person in prison is there on a drug charge. And one out of probably a couple of hundred of them is a real importanttype guy. Most are these low-level street dealers, or people caught in a house with a bunch of drugs. So it disgusts me to see all the time, sitting here negotiating sentences for prison [time] for some kid who sold a bag of drugs. It just makes me sick. Why are we talking about this? The law says you have to. So, basically, it’s abiding by these laws that are extraordinarily unjust. Even when you get to other crimes that aren’t drug charges. You’d be surprised what is and what isn’t a felony, and what is and what isn’t a violent felony. And I think most people would, too. If I came up to your car and wanted to break your window and broke your window [it’s typically a felony]. So I could end up a convicted felon. I’d probably be on probation, with some jerk probation [officer], even though I don’t need one, because nothing’s really wrong with me. Just because I had a bad day and punched a window doesn’t mean someone needs to look after me for five, eight years. So, too many things are felonies. Too many things carry jail time. And the jail time is extraordinarily high. [46]

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Because state legislators are responsive to community anxieties about crime, this lawyer argues, the penal laws become increasingly severe as time goes on. As such, sentencing laws function to restrict discretion even for judges who might otherwise be inclined toward leniency: Just like the chief prosecutor, just like the judges, politicians in the state capital are very sensitive to public opinion and the public believes, whether right or wrong, that higher punishments are a greater deterrent. And politicians, to make the public happy, and presumably get re-elected, are always, every year, one, creating more new crimes. Every year that [statute] book gets bigger. Two, they’re increasing the penalties… Judges now, they’re constrained a lot, even the good ones, to the sentencing guidelines. If your record is such, if you’re convicted of such, then you have to be sentenced whether the judge loves you like a son or not within a certain box. And it’s almost certainly an unfriendly box. And that’s the way it’s got to go. [46] Other defenders have expressed similar views. One describes as “severe” the “sentencing guidelines and where they fall after a conviction after trial as opposed to what you can plea bargain a case down to,” [18] while another suggests that “I think you have to revamp a lot of the sentencing rules and regulations because I think they’re draconian in a lot of ways.” [44] A final example is the attorney who granted that because the penal code mandates severe penalties, public defense is often about arguing for reductions in prison time instead of much more lenient sanctions: “I mean, because the laws are stricter now, and there are certain sentencing guidelines that have to happen, my job may be, instead of getting ten years, to try to get seven years in prison. [But] we all know that the ultimate result is that you’re going to prison.” [8] In sum, although many defenders said unkind things about judges and several consider particular judges much too severe when sentencing convicted defendants, there does seem to be recognition that this is something that in a general sense, judges do not fully control. Paradoxical Views? To many defenders, the judges they practice before are both selfinterested and unfair; others, however, offer a more mixed analysis. There are lawyers, for example, who speculate that there are judges partial to the prosecution because of a cynicism borne of unremitting exposure to crime and criminals, quite a few of whom are repeat

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offenders. Such a view, in fact, may be something that the following defenders are not altogether unsympathetic with: MW: Do judges treat your clients fairly? PD: Not all the time. MW: Is it because they are indigent? PD: No, it’s not because they’re indigent. Some of these guys- listen, one thing that’s true of a criminal defendant. They got, say, three options- and one of them goes down to China. They’ll always pick the one that goes down to China. You ask anybody here. You tell [these defendants], “Come back to court. All you have to do is come back to court. I’ll keep you out of jail. Don’t get re-arrested.” Sure enough, they’ll be back in. It always goes to China. It’s always the case. They pick it. So the judges get mad at them. They got the right. I don’t think it’s anything personal. They got to protect the people of [this city]. [Laughs] From some of these characters, they got to protect [the city]. Otherwise, they’d be on a rampage. There’s got to be a price to pay. [33] MW: Do judges treat your clients fairly? PD: Some do. [Pause] The judge I’m in front of now is decent on sentencing. He doesn’t kill people. Unless he’s told them, “I’m going to hit you for the maximum if you don’t do the following things for me.” There are judges who are pretty mean and tough that I’ve been in front of, who just want to land on them, on our clients. Because they’ve probably been a judge too long. MW: Why? PD: Because in this town you just see the same people coming in and in. I mean, I’ve been a PD for [a few] years and there’s probably 30 or 40 or 50 people I’ve represented more than twice. And it’s random! I mean… I’m in front of different judges, and here they come! You’re like, “What are you doing?” So, after a while, the judges can get pretty cynical about it, and they want to hammer them. [23] Of course, you have bad judges everywhere. But I think for the most part, the judges take themselves seriously and take their responsibility seriously. And it’s just kind of something you can’t get out from under. And they see the stuff they see in a pre-sentence investigation, or when you’re making an

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Public Defenders application to keep your client’s history out of his testimony. I mean, so the jury doesn’t know he’s got seven priors, but the judge certainly does, because you had to tell the judge so that [your client] wouldn’t be asked about them. That changes things. [19]

According to another attorney, it is this last detail that makes judging a particularly difficult task: MW: How about judges? Do they treat your clients fairly? PD: It’s a very hard job, passing judgment on another human being. You know facts you’re not allowed to consider, but that’s not human. I think many judges struggle to do the right thing. [9] A good number of public defenders, moreover, report that in their view, there are judges who do in fact do a decent job. One even tells of assisting in the election campaigns of deserving judges. [40] Another speculates that although “there are judges who we think are just prosecutors with a robe on, [Laughs] most judges are fair at trial. Most of them are. I’d say, 90, 95% of them are.” [8] Consider as well the faint praise of the radical attorney who allowed that “there are judges who will actually rule in the defense’s favor, because they expect prosecutors to do it right. That does happen. But that doesn’t legitimize the system.” [48] Indeed, the majority of defenders suggest that it is difficult to make generalizations and advise that to some degree there exist both good and bad judges: MW: Do judges treat your clients fairly? PD: I think for the most part judges try to be fair. I’ve had a few instances here or there where the judge acted with some animosity or some personal need but not that frequently. [14] There are a couple of good judges over there. About as good as they can be. They aren’t afraid of the prosecutor. That’s my definition of a good judge. I respect a judge who follows the law and who is not intimidated by the prosecutor or the police, whether or not they are a harsh sentencer. I would rather have that type of filter between my client and the sentencing phase and then have them get a harsh sentence than I would this sieve that it is now. [46]

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MW: Do judges treat your clients fairly? PD: Some of them. Judges range the whole gamut. From some who are very fair to the majority who tend to favor the prosecution but try to play it down the middle, to some who are beasts. [28] MW: How about judges? PD: Do they treat my clients fairly? Confidentially, I think they do. Not all. There are some judges- and I think everybody would probably mention the same name, or one particular judge that is great to everybody, is fair to everybody, everybody gets a break. Every prosecutor loves this judge. Every defense attorney loves this judge. Every client loves this judge. And then there are other judges that are harsh beyond belief to any defendant. [39] MW: How are the judges that you deal with? Are they fair with you and your clients? PD: Too broad a question. There are judges who I generally consider to be extremely fair, who have in specific cases done things that I think were unfair to that client. There are judges who I consider very, very pro-prosecution, who don’t play on an even field, who I’ve gotten very good results with. So again, I don’t think I can really answer that question. [43] Interestingly, while some defenders argued in Chapter Eight that their clients are victims of systemic racism, and a few suggested that minority defendants were treated more harshly than white defendants by certain particularly provincial town court judges, there were no wholesale allegations of racism in the judiciary. Perhaps judges were meant to be included in the accusations of systemic racism. Or, when defenders perceive a judicial bias in favor of the prosecution, this might be interpreted as a general sentiment incorporating or overshadowing other more specific complaints, including those about racist judges. Or, it could be that lawyers who truly felt this way were simply reluctant to target judges with a charge as serious as racism. It is also conceivable, finally, that the use of open-ended questions resulted in a lack of specificity on this point; had defenders been questioned on the issue directly, in other words, many might have said that there were in fact racist judges. Explanations like these, however, are less than convincing. Defenders who unreservedly declare that judges are biased against their clients and who complain freely of racial profiling by the

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police seem likely to identify whatever judicial deficiencies they detect, racism included. One defender, in fact, explicitly rejected the claim, asserting that while judges tend to favor the prosecution as a matter of general orientation, this has nothing to do with race or ethnicity: MW: What about judges? How would you characterize the way they treat your clients? PD: I’ve rarely seen a judge that I can honestly say was not being fair to my client because of their race or ethnicity. But I think there are judges who act more like prosecutors. You know, who are clearly taking a side. MW: Regardless of the ethnic background of the client? PD: Right. Right. [25] The accusation made by Detroit defenders in Eisenstein & Jacob’s Felony Justice (1977|1991) that many judges are driven by racial animus, therefore, has not been corroborated in this study. Judges in Conclusion In conclusion, while there are public defenders who express ambivalent and sometimes even favorable views about judges, there are strong patterns that suggest a less enthusiastic perception. Just as both common trends in subject responses and narrative depth should make it possible to draw conclusions about defender perspectives with regard to police officers and prosecutors despite the existence of alternative views, it is also fair to say that there is a clear sense among many defenders that when it comes to their clients, judges are frequently inequitable, ignore the individual needs of criminal defendants on sentencing, and place political expediency ahead of evenhandedness. ANTI-CORRECTIONS MOTIVATIONS: JAILS AND PRISONS The literature also reveals that many public defenders believe that contemporary correctional policy is misguided and that most correctional institutions are appalling places that degrade both the prisoner and the society that places him there. This is, in fact, such a powerful belief that it inspires these attorneys in their attempt to save their clients from incarceration, notwithstanding the likelihood of factual guilt. Babcock (1983-84), for example, argues that “the conditions of imprisonment may impose violence far worse than that inflicted on the victim. A lawyer performs good work when he helps to prevent the imprisonment of the poor, the outcast and minorities in shameful conditions” (p. 178). Wishman (1981) moreover, divulges that “the thought of an inhumane prison system raised in my mind, and

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more so in my heart, the gravest doubts about the whole system of justice” (pp. 8-9). He was, as a result, motivated “to keep people out of jail. That would be worthy of the fight.” (p. 15) Several of the lawyers interviewed for this study had similar thoughts. There was, however, a general willingness to acknowledge that there are violent and dangerous criminals who must be put behind bars; as one defender says, some clients “need to be in prison because [their] behavior is atrocious.” [8] According to someone else: There’s a certain portion of people who, until we invent some other thing, until we find a way to put that guy on a meteor, you got to go in a cage, you have to be away from the rest of us. What else are you going to do? Some people you have to do that to. Especially the people with sociopathic personalities who just solve every problem by lashing out and striking people. What are you going to do? You’ve got to keep them away from everybody. That’s what jails are for. And there are people who should go to jail. Oh, yeah. [46] Another attorney agrees with this view now, but felt differently when new to the job. After referring to a specific client as “anti-social” and asserting that “society should be protected from him,” this defender moderated these remarks by saying, “That’s my anger talking, though.” This prompted the following exchange: MW: But there are people society needs to be protected from. PD: That’s true. And I agree with that. I wouldn’t have agreed with that [earlier in my career]. MW: You would not have? PD: No, I wouldn’t have. MW: Even those guys who had sex with little kids? PD: No! Isn’t that bizarre? I don’t think I would have. I couldn’t reach that understanding. I didn’t know. MW: What was your understanding? PD: Prison is not the answer. I don’t know what the answer is, but it’s not prison. Now, I agree. I agree that there are people who need to be removed from society. [45] Still, it is argued, there are fewer such offenders than the public might think; according to one attorney, “there are people who are so whacked that no matter what you do, they’re going to pose a threat to people. I don’t think there are as many as we are led to believe by tough-on-

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crime politicians, but there are some people who need to be taken away.” [29] Another defender similarly suggests that demagogic politicians eager for re-election exploit the crime problem, and although some offenders require imprisonment, politicians who finance jail and prison construction create an atmosphere in which too many people are unnecessarily incarcerated: [Building jails] looks to the voters like it’s tough on crime. And the voters say, “It looks like there’s too much crime out there, we’ll vote for you.” Right now, it’s a vicious cycle. But at some point, they’re going to see what it’s costing us to build all these jails. And not only to build them but to maintain them. I think you would know that this is a very expensive proposition, and I’m not sure the value we get from it. I mean, we get safety, and we need safety, and some people need to be incarcerated. But I don’t think it’s the number that we have in there. [35] There is a difference, moreover, between convicted criminals who are “sociopaths and need to be segregated from society” and the majority for whom many defenders believe incarceration is more difficult to rationalize. This attorney even goes so far as to state: I’ve probably represented two to three thousand people in this time. Probably of those people, less than 10% I was afraid of, that I really thought this was a dangerous person. On the felony level a hundred were blameless, not guilty. The rest were somewhere in between very dangerous and completely innocent. [14] Correctional facilities, after all, are terrible places. Indeed, even for violent and dangerous criminals, imprisonment is itself a violent and dangerous experience; as one lawyer cautioned in a particularly understated manner, “you know, jail isn’t beautiful.” [20] Another urged that while some might think that prisoners have it easy, such a view is badly mistaken: “sometimes, people- including myself- have looked at prison and said, ‘Oh, it’s so cushy.’ First of all, I never want to be behind bars. Period. The end. It’s not cushy.” [44] The following defenders are more explicit about the indignities of imprisonment and angrily castigate those who are indifferent to such horrors: Jail is a terrible place. It’s a terrible way to live. Things happen. And I think prosecutors seem to [put people in jail]

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without even thinking. They have no conscience. You know, you send a kid away for stealing a candy bar to the very same jail you send a murderer to. And they get raped in jail. They get beat up in jail. They get tortured. I mean, do they really deserve that? I don’t know. I think there’s a lot of other things that could be done. [25] You hear someone getting six months in jail. That’s a shitload of time! Staring at the walls. Eating shitty food. Getting harassed by people. Have to fight somebody or something. Get your stuff stolen. All this shit. That’s hell for someone who’s never been in jail before. Five, six, seven, twelve, eighteen, twenty-five years in state prison? People still pushing for higher sentences have no idea what it’s like to spend a minute in there. If you want to punish someone, you do not need to give them a year in prison. That point will be made four months into that prison sentence. They’re going to learn everything they ever needed to learn about how much it sucks, how much what they did was wrong. But everybody gets so bloodthirsty about it. It’s ridiculous! Sentences are so harsh! The point is made so early into it. [46] There is no expectation among public defenders, moreover, that anyone sent to jail or prison will undergo any sort of positive personal transformation; as one defender rather indelicately put it, “I don’t think sending somebody into fucking state prison fixes anybody.” Such a situation is particularly frustrating for this attorney because in his view, even inveterate criminals can somehow be transformed into productive members of society: PD: I don’t think you can give up on any given person, any given human being in their ability to at some point change. The problem is, our prison facilities are not geared towards helping people change. They’re geared towards punishing them. But obviously people change… It’s about never giving up on a person’s ability to change or be productive, or be beneficial to society. And I think anybody has the ability to make that change. And you can’t assume that a person is never going to make that change. MW: How do you tell the difference between someone who can change and someone who is incorrigible?

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Public Defenders PD: I don’t think you can. And because you can’t, you can’t assume that the person is incorrigible. We’re not even addressing the possibility that they might [change]. [29]

Several defenders also claim that because modern correctional policy does not offer much in the way of rehabilitation, it is remarkably illconceived and achieves little of enduring value: Sometimes, people do need to be put away, because sometimes they do need to have limits put on them. But locking them up for the purpose of locking them up isn’t the answer. People have a great misunderstanding of what it means to be locked up. They think every cell has a Barca Lounge and a color TV and it’s not that way. People also have a misunderstanding about what “years” are. Two or six years are not a slap on the wrist. If it were you or your family member, that would be longer than it sounds. What it means is somebody being dumped into a place without rehabilitation for an incredibly long period of time. [14] I think that the Republican idea of law and order as a political statement, just throwing people in jail, is ridiculous. I tell my conservative friends, “Look, jail sucks!” I understand why some people go there. But they aren’t learning anything in there. To work with people, to get them off the drugs, we need a lot more flexibility. [23] I think there’s got to be a better way, the way we treat [criminals]. I don’t know how, I don’t know what. I mean, they’re certainly not paying for their crime by sitting in jail. It doesn’t do anything. The motivation is pure punishment and no rehabilitation. But it certainly doesn’t change what’s going to happen when they get out of jail. It’s not going to make for a better person or change what they’re going to do when they get out, I don’t think. And when you watch it happen, it’s sort of the end of the line, and you know that that person is just sinking into what the rest of their life is going to hold. [18] On the last point made by the defender above, others have similarly lamented that far from rehabilitating offenders, imprisonment indelibly transforms them not for the better, but for the worse; according to one lawyer, correctional facilities are “criminal training grounds. So now they come out a real criminal, and then that’s the life they’re in.” [36]

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The following attorney also draws attention to the tragically destructive life-long effects of imprisonment: Another thing is, they’re kids. It’s all kids. I mean, kidspeople from their early twenties down. They’re all kids now. It’s kids going to prison. You go to prison once, you don’t fear prison anymore. I have much less trouble seeing a 48year-old guy with felonies in three states and this state. A burglary here, a burglary there, a burglary now. You know, I’ll fight for that guy, but it doesn’t break my heart as much if that guy goes to prison, because he’s older, he should know, he knew it before. But, the kid who commits a crime where there is really no victim, draws a shitty prosecutor, and a tough judge during an election year, and gets whacked, it breaks my heart. Because, he’s dead! He had a hard enough time living in [the city] in the conditions he did. But now he’s going to be back in [the city] after being out of the loop for two years, learning only violence and theft and dishonesty. He’ll be back, and he’ll be on parole, a convicted felon, and even if he had the skills to get a job, he probably couldn’t get one. He’s dead. He’s doomed. Next time he steps on a crack, he goes back to prison. So, you see kids’ lives end right before your eyes. You know they’re done. They’re done. You just know they’re done. [46] Another lawyer agrees with this defender’s point that “you go to prison once, you don’t fear prison anymore.” In addition to hardening an offender’s criminal tendencies, this attorney maintains that the ordeal of imprisonment becomes more tolerable after the first time and ceases to function as any sort of disincentive to crime: And the underlying thing, I keep telling people this- I really do believe once we send people to jail, we’re going to lose them in the long run. I have not found many people coming out of jail better than when they went in. Yes, there’s a percentage in there that take advantage of a program and whatever. [But] once we send people to jail, the usual message becomes, “I just did the time. I didn’t think I could do seven years in prison. But I did.” Every defender will tell you they’ve had clients who say, “Get me seven or ten years. I don’t care. I can do it standing on my head.” Been there, done that. Worth the risk to try to commit this new crime? Absolutely. “Because if I

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Public Defenders get punished, I know I could do the time. I already did it.” So we lose the weapon, the deterrent effect of the jail sentence. All those who’ve been there and done the time, they don’t want to go back and do it again, don’t get me wrong, but it’s not as scary as it was when they first went. [35]

In sum, many of the public defenders interviewed for this study are at best ambivalent about the correctional system. While they freely admit that there are people who must be imprisoned in the interests of social protection, most nevertheless believe that nothing good will come from this for anyone. For many defenders, then, doing what they can to help their clients avoid what amounts to a catastrophic and life-changing experience motivates them to do what the kind of work they do.

CHAPTER 12

Public Defender Motivations: Discussion and Implications

This study was interested not in why someone must be a public defender- why public defenders must exist- but rather why the lawyers taking part in this project felt it important for them to be public defenders. A review of the literature, of course, demonstrated that there is a good deal about defender motivations that may be extracted from a variety of sources; many of the issues, therefore, were not entirely new. Still, as this study has demonstrated, there was much more to be learned. Because there had been few efforts to identify or examine these issues in any systematic fashion, moreover, an inductive, qualitative, descriptive study of defender motivations was in order. Much of what the pre-existing literature reveals, for example, is extrapolated from sources largely devoted to other matterscommentary on the history, ethics, professional development and law relating to indigent defense attorneys (Freedman, 1966; Friedman, 1985; Heinz & Laumann, 1982|1994; Kaplan, 1986; McDonald, 1983b; Ogletree, 1993, 1995; Pizzi, 1999; Platt & Pollack, 1974; Smith, 1993), passing observations found in broad-based studies of court processing more interested in understanding plea bargaining than in uncovering why lawyers become public defenders (Blumberg, 1967|1974; Church, 1985; Clynch & Neubauer, 1981; Eckart & Stover, 1974; Feeley, 1979|1992; Eisenstein, Flemming, & Nardulli, 1988; Eisenstein & Jacob, 1977|1991; Flemming, 1986; Heumann, 1978; Levin, 1977; Mather, 1979; McIntyre, 1987; Mileski, 1971; Nardulli, 1978, 1979; Neubauer, 1974; Skolnick, 1967; Sudnow, 1965; Ulmer, 1997; Wice, 1985), case studies of indigent defense agencies (Hermann, Single, & Boston, 1977; McConville & Mirsky, 1986-1987), popular media portrayals (Goldman & Holt, 1971; Mills, 1975), and defender reminiscences in books and law review articles (Bellows, 1988; Babcock, 1983-84, 1984-85; Claerbaut, 1978; Deutsch, 1990; Kunen, 1983; Ogletree, 1995; Thaxton, 1995; Wishman, 1981). While such works are informative, they lack the rigor of a carefully planned approach that systematically examines why lawyers choose to 271

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be public defenders. Public defender memoirs, in particular, cannot accurately be categorized as research. Much as they might tell us, books from popular publishing companies are designed for a lay audience and may therefore be filled with the personal sentiments and sensationalized events authors imagine their readers expect; they might, in addition, be calculated to provoke. Law review articles written by public defenders are targeted to law students and lawyers; they may be intended to rationalize a career path to a larger community of lawyers believed to be disdainful of their work or unimpressed with their legal skills. Defenders inclined to write about their experiences may not even be representative of the rank and file involved in daily practice. Indeed, many- though not all- of these authors write as former defenders; the fact that so much of this commentary comes from attorneys no longer engaged in the practice of public defense is further evidence that it might be difficult to generalize from what they write. When beginning this study, then, I began with the recognition that the pre-existing literature might not necessarily reflect the actual reality and full spectrum of public defender motivations. Motivations left unidentified might exist. Some of what we thought we knew might not be entirely accurate. Differences might emerge between the literature and what respondents would reveal. When asked about their motivations directly, actual defenders might provide unexpected detail. The intent of this research, in sum, was to systematically conduct semistructured interviews for a descriptive study of public defender motivations in order to more clearly understand an important area of interest. With a few exceptions, what the subjects of this study make known is consistent with what the literature suggests. Still, as expected, much of what was discovered went well beyond the literatureproviding much more informed perspective, significantly greater texture, considerably more elaboration, and additional thoughts on related issues and sub-themes that exist on the periphery of the literature, if at all. UNANSWERED QUESTIONS AND AN AGENDA FOR FUTURE RESEARCH It seems likely that the existence of certain motivations, the patterns in which they cluster, and the intensity with which they are held may vary according to a variety of individual, organizational and community level variables. As far as this study is concerned, however, precision in this regard is elusive. To be sure, qualitative research emphasizes texture over exactness. More specifically, there are too few subjects and too few settings to confidently draw conclusions about these matters. The nature of semi-structured interview research, moreover, is

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such that not every subject is asked in exactly the same manner about precisely the same things; some respondents spent the bulk of our sessions speaking of certain aspects of their work while others focused on different themes. Drawing inferences about how defenders vary on specific dimensions is therefore a tricky proposition. Indeed, one way to assess variation on individual, organizational and community characteristics would be to follow this sort of qualitative and inductive research with a deductive and quantitatively-oriented large-scale survey in which an extensive sample of defenders in a number of settings are asked to answer specifically phrased close-ended questions. In this way, more precise measurements can be obtained. What follows, then, is a speculative discussion, derived from both the results of this research and the examination of the literature. Individual Level Variables How a public defender’s race is related to his or her motivations is an especially intriguing question. African-American defenders, for example, might have strong political motivations; their life experiences may lead to cynical views of the American social order and criminal justice system. As such, one prediction is that they would possess critical motivations at high levels; Eisenstein & Jacob’s (1977|1991) depiction of the “militant” black defenders of Detroit certainly suggests such a conclusion. It also seems plausible to expect African-American defenders to be highly altruistically motivated. Sharing a common bond with a client base that in urban locales is largely comprised of racial and ethnic minorities may reinforce a commitment to client interests less compelling for defenders from other cultural backgrounds. With one exception, the black defenders taking part in this study indeed articulated a clear racial consciousness; they were particularly disturbed about the high numbers of black defendants and inmates. They also felt solidarity with those who have lived less fortunate lives than they have and were resolute in their desire to help them. Other hypotheses, however, may also be persuasive. It may, in fact, be the case that black defenders are not so politically motivated. They might view themselves as living proof that poverty and crime are not inevitable results of an oppressive society or biased criminal justice system. African-American defenders, moreover, may not be all that altruistically motivated. Consider, for instance, Spohn’s (1990) explanation for her finding that black judges, much like white judges, sentenced black defendants more harshly than they did similarly situated white defendants. She proposed that African-American judges might see themselves as protectors of victims of black-on-black crime.

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Similarly, far from being motivated to “make a difference” for needy black clients, African-American defenders may feel kinship with innocent black victims and express more disapproval for their factually guilty clients than would be expected of defenders from other cultural backgrounds. Their motivations, in sum, might derive from other sources. Although none of the black defenders participating in this study said things like this, such sentiments are not outside the realm of possibility. Future research, therefore, would be of value. It also seems difficult to predict how gender accounts for defender motivation. Developmental psychologists have proposed that women are more attuned than men to such things as the maintenance of relationships, the avoidance of harm, and the promotion of harmony, empathy, community, and caring (e.g., Gilligan, 1993). In an informative study, Jack & Jack (1989) explore how such “genderlinked moral differences” affect the way attorneys approach their responsibility “to represent vigorously the position and interests of the client, to take the client’s place in the legal process” (p. 29). The authors presented to a sample of female and male attorneys two hypothetical dilemmas, the resolution of which involved a choice between adherence to rights-oriented legal obligations and extra-legal care-oriented considerations. They found that “a significant majority of responses from female attorneys reflected care concerns and more than three-quarters of the male responses came from a rights perspective” (p. 56). If such results are generalizable- they are based on interviews with 18 male and 18 female attorneys in one location- it is reasonable to think that the motivations of male defenders are more likely to be of the legal variety, while female defenders are more altruistically motivated. With regard to the former, it is useful to recall the sentiments of the male attorney interviewed by Jack & Jack who avowed that such constitutional norms as the right to counsel and the obligation of vigorous defense make it “easier to represent a criminal defendant, because when you take that role, society has already told you it’s okay” (p. 81). With regard to the latter, an emphasis on harmony, empathy and caring suggests that female defenders would be motivated to help those in need, and their clients certainly fit such a description. As may be the case with African-American defenders, however, it also seems plausible that the female defender’s “morality of care” might be directed less to indigent defendants than to the innocent individuals and communities victimized by their clients. The motivations of female defenders, in sum, might be rooted in something other than the desire to “make a difference” for needy clients. Here too, although male and female defenders were each well represented among those describing

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constitutional and altruistic motivations, no clear patterns emerge. Additional research would be quite revealing. Variation on other individual dimensions also appears likely. In his book Plea Bargaining, Heumann (1978) documents how the behavior and perspectives of recently hired defenders- “newcomers”- change as they gain experience and insider knowledge about their jobs. Newcomers report that among other things, they expected to spend much of their time at trial, preparing motions and doing other formally adversarial tasks on behalf of largely innocent and falsely accused clients. During a year-long “adaptation” period, however, Heumann describes how newcomers begin to understand that most of their clients are guilty and that they can obtain better results for them through the informal negotiation of guilty pleas. Heumann’s study, then, provides evidence that attitudes may vary according to the defender’s tenure. Still, it is difficult to state for certain how public defender motivation may be affected by length of service. If, as Heumann suggests, more experienced defenders eventually come to terms with their jobs, then it is likely that newer, more adversarial defenders are more politically motivated than their more experienced colleagues. On the other hand, it stands to reason that the lack of formal adversarialism and a mostly guilty client base may leave many defenders disillusioned and thus among the most likely to leave defender service agencies in search of other employment opportunities. If true, only the most intense of the politically motivated public defenders would remain to do what they see as important work under such circumstances. More experienced defenders, then, may be just as politically motivatedperhaps even more so- than those with less experience. It is also fairly well accepted that people tend to become more settled and conservative as they grow older. Thus, one might expect younger public defenders to be more politically motivated than older public defenders. At the same time, there are defenders in this study and in the literature who see their work as a way to continue the political activism of their younger years. If this is so, it is likely that older defenders, who attended college during times of greater social unrest, might be more highly politically motivated than the next generation. Indeed, several of the most experienced public defenders interviewed here openly referred to their own 1960s experiences when discussing their motivations to represent the indigent. It seems axiomatic, moreover, that many of the more politically motivated public defenders would be associated in some way with leftoriented politics and devoted to “liberal” causes involving the use of government power and money to effect social reform. Yet, the legal

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motivation involving the libertarian interest in curtailing the reach of government is something of a “conservative” outlook; defenders motivated in this way may be less likely to be involved, however peripherally, in leftist political causes. It may well be, finally, that this particular dichotomy is off-kilter in a jurisdiction controlled by one political party or another; where government jobs are doled out with some attention to local connections or party membership, a defender’s political affiliations may represent nothing more than an effort to maximize professional opportunities. While several of the defenders in this study discussed their outside political interests, the information obtained was too scattered to draw definitive conclusions. In sum, variation with regard to age, length of service, and political sensibilities may also be illuminated by additional research. Organizational and Community Level Variables Public defender motivations might also vary on important organizational and community dimensions. The style, stability and policies of management, for example, have been identified as factors crucial to the operation of the criminal courts (Carter, 1974; Eisenstein & Jacob, 1977|1991; Eisenstein, Flemming, & Nardulli, 1988; Heumann, 1978; Rossett & Cressey, 1974). In places with strong leadership, supervisors might instill among assistants both their outlooks about professional tasks and moral obligations, as well as their more general ideas about crime, criminals and the social order. Such views might be expressed formally during training or through official guidelines and performance measures. Or, they might be inculcated informally; widespread and deeply felt sentiments on these matters are likely to permeate the atmosphere and create a distinct office culture. Alternatively, strong supervisors might not be politically motivated at all. What they convey to their assistants may be limited to institutional policy and devoid of ideological content. Their words and actions may therefore have little effect on defender motivations. Or, their leadership approach may serve to actively discourage politically minded assistants who might create office disharmony, as in the situation reported by Platt & Pollack (1974). It is also possible, finally, that there are supervisors with less involved management styles who simply refrain from attempting to instill distinct perspectives or produce a perceptible office culture. In such cases, new defenders will begin their work according to their pre-existing motivations, and these will evolve as they gain greater experience without reference to the outlooks of their superiors; after all, one of the things defenders in this study most appreciated about their jobs was the autonomy they had to handle cases as they saw fit. Because data for this study was collected

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over a short period of time, it was difficult to discern the extent to which leadership played a role in molding office culture. Once again, future research might somehow tap into this issue. The nature of the office itself might also be related to public defender motivation. Indeed, this is one dimension in which this study does in fact seem to have identified a small but discernable difference in motivation: in the small town, part-time office, there is little defender consciousness or solidarity, a pragmatic motivation reported by many of the defenders interviewed for this study. Perhaps such a finding can be explained by the fact that this is a small agency without very many public defenders; of course, it might be argued that small offices are uniquely positioned to develop a sense of intimacy and teamwork among the staff. More important, it seems, is office structure: attorneys handle much of their part-time public defense work in geographically dispersed town courts. These lawyers do their out-of court preparation mainly from their private offices, which for some are as secluded as the courthouse within which they practice. Even those defenders who do part-time work in this setting’s one urban locale, or who have private offices there, do not spend much time at the actual Public Defender’s Office, despite their close proximity. According to respondents from this site, moreover, there is little direction from the chief defender1 and with few exceptions, not much contact among colleagues. There are defenders in this office, in fact, who rarely ever see each other. Without constant interaction, there is little opportunity to develop the companionship that defenders from the other two sites find so important. It is interesting, however, that this one exception notwithstanding, defenders from this setting expressed the same assortment of pragmatic, constitutional, altruistic and critical motivations as defenders from the other two offices; the only real difference has to do with camaraderie. The larger environmental context might also affect public defender motivations. In jurisdictions with more distressing crime problems, repeated exposure to violent criminals accused of heinous offenses might moderate a defender’s altruistic or critical motivations and concomitantly, perhaps, strengthen a defender’s constitutional and legal motivations. For defenders in search of voyeuristic thrills, this might even serve as a more pragmatic incentive. On the other hand, high crime rates mean not just more criminals but more crime control; a defender already suspicious of police officers and prosecutors will in such places have more and more frequent targets for their acrimony. Police and prosecutorial policies in high crime areas, for example, often emphasize the arrest and conviction of trivial offenders as a means of

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both identifying violent lawbreakers and improving the quality of life for the law-abiding. A client population that includes substantial numbers of defendants accused of minor offenses might strike public defenders as an unwarranted policy aimed disproportionately at the poor and disenfranchised, as well as a frivolous enterprise that abuses the spirit- if not the letter- of the criminal sanction. High crime rates may therefore serve not to diminish but rather to enhance a public defender’s altruistic and critical motivations. The racial and ethnic balance of the location within which public defenders work might also be related to their motivations. A high percentage of non-whites in a particular site, for example, suggests that defenders of all backgrounds will have been exposed to the concerns and experiences of minority communities. In jurisdictions without a significant minority population, on the other hand, much of what is compelling about political motivations may lose its foundation. Absent the social problems associated with urban municipalities, and without substantial numbers of minority clients, defenders might find it difficult to translate an oblique sense of social injustice- if indeed they possess one- into actual reasons for doing their job. Each jurisdiction in this study included sizeable minority populations and a large minority indigent client base. How public defender motivations differ according to the character of the clientele and the makeup of the community are also questions that should receive attention in the future. In conclusion, the substance and intensity of the motivations that animate public defenders are likely to vary according to important individual, organizational and community dimensions. The direction of this variation, however, is difficult to predict. By interviewing public defenders, this research has been able to generate ideas about the nature and meaning of defender motivations. How they vary is an issue that needs to be more extensively examined. WHY PUBLIC DEFENDER MOTIVATIONS MATTER This research has presented a detailed account of public defender motivations; collectively, it may even reflect a distinctive public defender identity. If this project is to be truly complete, however, its findings should prompt some thoughts about pre-existing courts and defender-related literature. To begin, this study should cause readers to question suppositions held by those who adhere to the “radical” view of public defenders and the criminal courts. In their book, The Mythology of Crime and Criminal Justice, for example, Kappeler, Blumberg, & Potter (1996) argue that public defenders do not “serve their clients very well” (p. 245). Not only do they have a heavy caseload, but in addition:

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Public defenders are employees of the court. Their professional lives depend on good working relations with prosecutors and judges. Rocking the boat will not enhance a public defender’s professional life. Agreeing to a quick plea bargain that clears the court calendar and gives the prosecutor a “win” on the other hand, will. (pp. 245-246) In the second edition of A Primer in Radical Criminology, Lynch & Groves (1989) similarly write: Both criminal clients and public defenders experience the frustrations associated with an overburdened court system. For lawyers who envisioned a glamorous legal life a la Perry Mason, or who thought they could “make a difference,” the daily grind of the criminal courts becomes a harsh reality and results in burnout. In light of this, it is not hard to imagine that attorneys seek to avoid such undesirable positions after spending thousands of dollars and three years of their life in legal training. In many instances, public defenders view their office as a means to sharpen their legal skills and improve their chances of joining the corporate world. Few stay in the public defenders office more than a few years… Research on the legal profession suggests that the criminal justice system operates to the disadvantage of poor persons mainly because they cannot afford to hire a private attorney. (pp. 102-103) [Citations omitted] One last passage comes from Reiman’s The Rich Get Richer, the Poor Get Prison (1995): Indigent defendants, those who cannot afford to retain their own lawyers, will be defended either by a public defender or by a private attorney assigned by the court… The public defender is a salaried attorney with a caseload much larger than a private criminal lawyer… [and is not] able or motivated to devote much time to the indigent defendant’s defense. [Public defenders] are strongly motivated to bring their cases to a close by negotiating a plea of guilty. Because the public defender works in day-to-day contact with the prosecutor and the judge, the pressures on him or her to negotiate a plea as quickly as possible, instead of rocking the

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Sentiments like these, clearly influenced by the early critiques of Sudnow (1965) and Blumberg’s (1967|1974), have long been part of the radical tradition in the study of criminology and criminal justice. Allegations that public defenders amount to little more than “double agents” who willingly sacrifice client interests to prosecutors and judges so as to promote efficient case processing, however, must themselves be critically assessed. While it bears repeating that it is difficult to make wide-ranging generalizations from a semi-structured interview study, serious reservations may be expressed about claims like those excerpted above. As this research demonstrates, those who insist that defenders care less for defendants than they do for the court, or become disillusioned and burned out because cannot “make a difference” for their clients, or represent indigents only to prepare for a future in corporate work seem to be missing something both significant and compelling about the public defenders of which they speak. An attorney interviewed for this study, for instance, confidently predicted a long career in public defense, remarking, “I think I’m a lifer.” At one point, in fact, this lawyer exuberantly declared, “This stuff jazzes me up! Really! It gets me going in the morning. I love it! I absolutely love it!” [42] Another defender proclaimed, “I love this shit!” and added, “For me, this just met a whole lot of different needs, intellectually and emotionally. There’s nothing like this job in the whole world. I could do this 24 hours a day and still do more.” [9] Comments like these hardly seem the sentiment of burned out or “double agent” defenders. Indeed, radical criminologists might be surprised to discover that, like them, many public defenders are passionate about the rights of criminal defendants, place a premium on helping the vulnerable and powerless, and severely criticize police, prosecutors, judges, and correctional policy. Quality of performance, to be sure, is notoriously difficult to evaluate and this study does not attempt to measure it. Still, without making any express empirical claims, one can conclude from the depth of their narrative, from their insightfulness, and from their passion that public defenders are at the very least not the “double agents” described by the radical contingent. This research also sheds light on broader theories of court processing. Recall that public defenders resolve the vast majority of cases without trial. So, what does the diverse array of defender motivations tell us about theoretical attempts to portray the criminal courts? A number of scholars (Carter, 1974; Church, 1985; Clynch & Neubauer, 1981; Emmelman, 1995; Heumann, 1978; McIntyre, 1987;

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Skolnick, 1966) have argued that the infrequency of trials does not necessarily mean that adversarialism is missing from the criminal courts: although formal adversarialism may largely be absent, informal adversarialism nevertheless exists. These authors suggest that organizational theorists who have argued that the criminal courts are comprised of “courtroom workgroups” within which prosecutors, defense attorneys and judges cooperate amicably to foster the expeditious disposition of cases have overlooked something important. Closer to reality may be that case resolution is the result of informally contentious interactions between prosecutors and defenders through which negotiated dispositions emerge. While it is true that this research examines outlooks and not behavior, the anti-prosecutor and anti-judge perceptions of many of the defenders interviewed for this study provide evidence that there may be something to this explanation. It has also been suggested that acrimonious relations between prosecutors and defense attorneys may simply be the natural result of their positions as court rivals (Carter, 1974; Skolnick, 1966). This study’s findings indicate that there may be something to this too. To be sure, there is a cause-and-effect question here: it may not necessarily be clear whether a lawyer’s role as a public defender leads to an aversion for prosecutors, or whether a lawyer with an aversion for prosecutors is naturally inclined toward public defense work. Either way, recall how unlikely or impossible it was for many of the defenders interviewed here to even conceive of themselves as prosecutors; recall as well those defenders who reported that it would be difficult or impossible to even be friends with a prosecutor. It may be that the public defender who stated that “some people are born prosecutors and some people are born defense attorneys” [4] is on to something important. It bears repeating that this is the first systematic exploration of public defender motivations. Smatterings of what was discovered may be found in the pre-existing literature, but nothing quite as elaborate or fervent as what is presented here. This study has, in addition, discerned specific aspects of a public defender worldview that have not previously been depicted. The notion that the public defender functions as a sort of social worker is one such example. No researcher has until now identified among public defenders any trends suggesting a deep or abiding religious faith. Certain anti-authoritarian motivations have been described here for the first time. Even more telling, however, is that the defenders interviewed contend that although many of their clients have done something wrong, a sizeable percentage are either completely innocent or factually guilty but in court only because of official wrongdoing. This contrasts with what many previous authors have

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written. There is a sense among courts observers, as Heumann (1978) has asserted, that a defender’s “raw material is not typically the railroaded innocent defendant; instead, it is an individual who, in all likelihood, is guilty of the offense charged or at least is guilty of an offense related to the charge” (p. 58). Clearly, such a view cannot generally be ascribed to the defenders interviewed for this study. This research should also precipitate thoughts about what prior studies have suggested about the defender’s cognitive adjustment process; researchers have portrayed the public defender as employing various strategies designed to assist them in coming to grips with unexpected or unsavory aspects of their work. Heumann (1978), for one, argues that although public defenders prefer not to plea bargain, they soon conclude that this approach obtains the most favorable dispositions for their clients. In his view, although defenders would rather take every case to trial, they accommodate themselves to the benefits of an informal resolution. The defenders interviewed here, on the other hand, offer few thoughts on what may or may not be advantageous strategy. True, they love to be on trial, too. But the fact that this is rare does not seem to have engendered any sort of rueful adaptation to reality. Trial work is desired and appreciated when available. But when it is not, other motivations remain. McIntyre (1987) looks at the public defender’s cognitive adjustment process from a different angle. She argues that when clients are guilty of serious crimes, defenders make cases “defensible” by averting their focus from the nasty things defendants have done and concentrating instead on the malfeasance of the police, the prosecution and the judiciary, as well as on their clients’ constitutional rights (p. 143). The defenders interviewed for this study expend much energy criticizing wrongdoing in the criminal justice system, and they are keenly devoted to their clients’ constitutional rights. But as Chapter Seven demonstrates, this research also adduces an altruistic motivation that McIntyre has not really tapped into. Although McIntyre does assure that in less serious cases, public defenders do empathize “with the client’s situation” (p. 143), she also maintains that with more serious offenses, “the ability to empathize breaks down” and in the words of one her defenders, “‘you have to care more about your clients’ rights than you can usually care about your clients’” (p. 144). While this may not be inconsistent with the constitutional motivations described in Chapter Six, it must be emphasized that the public defenders interviewed here say they care very much for their clients. For one thing, they insist that many of their clients are completely innocent. But even those who have done something wrong are not typically viewed as unsympathetic. These attorneys see their clients as

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human beings who are weak and vulnerable and in dire need of the public defender’s help. Indigent defendants need help because they are impoverished and disenfranchised. They need help in order to confront the forces of the state lined up against them. They need help to face the personal demons that may be at the root of their misbehavior. And even defendants who have done terrible things are seen as deserving attention, compassion, dignity and respect; the fact that they have committed horrible crimes only means that they need help even more. McIntyre, in other words, skims the surface of the public defender’s critical motivation; the altruistic motivation is mostly overlooked. Heumann and McIntyre also describe the coping mechanisms that allow public defenders to deal with the unavoidable fact that their clients are consistently convicted and therefore they continually lose. McIntyre (1987) suggests that Cook County public defenders redefine what it means to win and lose by taking pleasure in such “almost-wins” as lengthy jury deliberations and “out trying” prosecutors (pp. 162163). Heumann (1978) similarly notes that although true victories are rare, Connecticut public defenders take satisfaction in their ability to secure lenient plea agreements for clearly guilty clients. The public defenders interviewed for this study, however, seem much more undeterred. When describing how police, prosecutorial and judicial wrongdoing causes their clients to be convicted or sentenced harshly, their bitterness becomes apparent. Yet the chapters on critical motivations suggest that this frustration is less about their own poor batting averages than it is indignation about official misconduct. Actually, what may really demand reconsideration is the larger notion that defenders even experience a cognitive adjustment process to rationalize their work. After all, only if defenders are uneasy about public defending will they devise “coping mechanisms” to make it seem responsible. Despite Chapter Three’s review of reflective defender musings about the ethics of their work, this study provides little evidence to suggest that public defenders have any serious moral qualms about what they do. Quite the opposite, in fact: the constitutional, altruistic and critical motivations described by the defenders interviewed here demonstrate that they are largely convinced that what they do is as principled and honorable as any work can be. But why might this be? Why, after all the research that has been done on courts in general and public defenders in particular, is this study discerning new and different things? One way to explain this is to observe that in recent times, courts researchers have been particularly concerned with the factors that account for variation in the criminal process. To what extent, it has often been asked, does the defendant’s

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race, class, gender, age or even type of attorney affect charging, bail, conviction rates or sentence severity? Others have wondered about organizational and environmental effects. Contemporary courts scholars, in other words, have often examined particular segments of the court process in isolation from the whole. Efforts to account for the influence of particular variables at these decision points, moreover, have compelled the construction of theories and hypotheses that attempt to explain linkages between demographic, organizational, or community-level variables and variables representing specific court outcomes. This approach has required methodologies appropriate for the analysis of quantitative data. In sum, explanatory courts research has long been ascendant. To be sure, the specificity of such research questions, the focus on hypothesis testing, and the quest for precision in measurement has resulted in vitally important research. We have a better understanding of the courts as a result. This study takes a different approach. It poses a broader research question. It seeks to understand the public defender’s role in and of itself and also as part of the larger criminal process. It refrains from linking variables in an attempt to predict a relationship about the functioning of the criminal courts. Lastly, it utilizes an inductive methodology and qualitative data in order to tap into the character of public defenders and the nature of their work in a way that explanatory strategies cannot. And although there have been exceptions (e.g., Emmelman, 1996, 1997), because most of the current scholarship has not studied the courts in this way, it stands to reason that this research would discern things about public defenders that have not until now been uncovered. Many important older studies have utilized inductive and qualitative methods to examine the courts. Still, it is worth noting that a research question is asked here that has until now not been posed; this too is a likely explanation for this project’s novel findings. Inductive courts research often begins with the premise that most criminal cases end with a guilty plea and asks why there is plea bargaining or what the consequences of plea bargaining are. This study, however, begins with a more basic proposition; defenders are asked: “why are you a public defender?” This is an important distinction. For one thing, instead of spending their time explaining legal tactics, this approach compels respondents to dig more deeply and more thoughtfully into their own history and their own psychology to explore, in colloquial terms, what makes them tick and how they see the world. In addition, asking “why are you a public defender?” ensures that plea bargaining, a topic that is both inviting and complex, is not the primary focus of this study. The use of both a semi-structured format and open-ended questions, of

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course, permit participants so inclined to move an interview session toward a discussion of plea bargaining and related subjects. But the very fact that this study’s respondents did not do this demonstrates that there is much more to a fuller understanding of public defenders- and by extension, the criminal courts- than research on plea bargaining alone is able to provide. In the end, it may be that this research is able to systematically account for a diverse array of public defender motivations illustrating fresh and interesting things about both defenders themselves and the courts in general because, quite simply, public defenders were asked directly about them. CONCLUSION Once more, this study was interested not in why there must be public defenders, but rather why public defenders themselves felt it important that they be public defenders. The pragmatic, constitutional, altruistic and critical motivations expressed with assurance and zeal by the defenders interviewed for this study provide answers to this important question. Indeed, the pragmatic and political motivations that drive public defenders seem to collectively constitute a broad mindset unique to the profession. And while individual defenders may possess such motivations in varying proportions, their commitment to their work is clear. Consider, one last time, the remarks that follow: The defender community is very tough…, they don’t just hire anybody. I mean, we want to know when we are hiring you exactly what your political persuasion is. We are very keen on keeping away anyone who is a potential prosecutor. We don’t want anyone who is looking for trial experience with the sole purpose of maybe going on to work for a firm. Or just to get some life experience. We want people who are absolutely die hard committed to the cause, because it takes that kind of commitment to represent someone. [34]

________________________ ENDNOTES 1 Defenders in this site were also fairly experienced; the chief defender likely viewed monitoring of this sort as unnecessary.

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References

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Appendix

Interview Guide

Background and Education • I’m interested in better understanding why people become public defenders. Could you describe any factors, anything that occurred in your life or your education that might have drawn you to this line of work? Was there ever a moment when you said to yourself: “This is what I want to do?” o What made you want to be a lawyer? o Growing up, were there any experiences that helped lead you to a career in law or in indigent defense work? o Did you decide before, during, or after law school that you wanted to be a public defender? Was this your first professional experience? Indigent Defense Work • A lot of people graduate from law school, but not all that many law school graduates become public defenders. Did you interview for other jobs also? • What kinds of jobs? How did it happen that you became a public defender? Why did you end up here instead of somewhere else? • What did you learn about this job that you didn’t know when you started? • In preparing for this research, I’ve spent time watching courtroom proceedings. But what is there about your job that I wouldn’t pick up from watching in court? How would you describe it from the insider’s perspective? o What are some of your best things on this job? What are some of the worst? Criminal Court Processes • I’d like to grasp some the specifics of what you do. o Could you describe your typical client? o How often do you try cases? o What other sorts of things do you do?

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•

• •

There are conflicting images of the relationship between prosecutors and defenders. Some suggest that there is animosity. Others argue that they along well. Which is true? Have you had any experiences illustrating this? o {If response suggests animosity}: Are you saying you don’t like prosecutors much? Or, is it more complex? o {If response suggests a good relationship}: Do you mean you have no problems with prosecutors? Or is it more complex? Prosecutors get paid about as much as defenders do, and their work is in many ways similar, just from the flip side. Some people have been known to go from one job to the other. Have you ever thought of working as a prosecutor? o {If so}: What about being a prosecutor appeals to you? o {If not}: What about being a prosecutor would make you uncomfortable? o {If already have} Why did you leave prosecution? o Have you had any experiences or made any observations that have led you to these views? o Do prosecutors treat your clients fairly? Are there any cases or clients that illustrate this? Are judges evenhanded? Towards you? Your client? o Are your clients treated the same way as those who retain their own attorneys? o Are there any cases or clients illustrating this? What is your relationship like with the police? Do they treat your clients fairly?

Future Plans • Many public defenders leave the office after a few years. Do you see yourself here in five years? Ten years? o {For younger or newer defenders}: Would you consider making this your career? o {For older, more experienced defenders}: Why would you say that you have spent so much of your career doing indigent defense? o If you could go back in time, would you do it all again? o Could you see yourself in private practice? Summary Questions • If someone were thinking about becoming a public defender and came to you for advice, what would you say to them? The Sixth Amendment requires that most indigent defendants be • provided with counsel. So, someone must be a public defender. But what I really want to know is why is that someone you?

Index rebellion against conventional morality, 146-155 vagueness of, 145-146, 150-151 Anti-judge motivations, 245264 judges and race, 245, 263264 judges and sentencing, 245, 257-260 judges are cynical, 260262 judges are political, 252257, 260, 269 judges are in general proprosecution, 245, 246247 judges are unfair at trial, 249-250 judges disregard the law, 245, 248-249 judges ignore the presumption of innocence, 247-248 judges lack compassion, 257-259 judges tolerate police misconduct, 245, 250252 pro-judge sentiment, 262-264 “terrible guy exception,” 251-252 Anti-police motivations, 163196

A Time to Kill, 14 Allen, Donald E., 35 Alschuler, Albert W., 23, 24 Altruistic motivations, 117143 helping others, 117-121 making a difference, 126129 needing to be needed, 138-142 providing needed social services, 130-131 recognizing the client’s humanity, 121-126 religious motivations, 136-138 talking, listening, and providing meaningful relationships, 131-136 Anderson, Elijah, 24 Anti-corrections motivations, 264-270 correctional facilities are terrible places, 266267 correctional policy increases crime, 268270 correctional policy fails to rehabilitate, 267-268 too many people incarcerated, 265-266 Anti-establishment motivations, 145-161 fighting the “system,” 155-161 297

298 arrogant police attitude, 163, 170, 184-186 difficulties of policing, 191-194 dislike of police, 163-165 factually innocent clients, 172-176, 182, 185186. See also, Racism and racial profiling illegal police behavior in general, 165-168 immoderate police behavior, 187-188 legally innocent clients, 168-171, 182. See also, Racism and racial profiling low police intelligence, 181, 190-191 overcharging, 181-183 petty arrests, 183-184 police brutality, 163, 177178, 185-187 police corruption, 188-190 police exploit vulnerable people, 171-172 police insularity, 190-191 police lies, 163, 165-176, 192-193, 196 pro-police sentiment, 165 racism and racial profiling, 176-181, 185-186 Anti-prosecutor motivations, 197-244 dislike of prosecutors, 233-234, 240-242 distaste for prosecution work, 237-240 pro-prosecution sentiment, 198-199, 234-237 prosecutorial racism, 204206, 216-217

Index prosecutors are judgmental, 206-210 prosecutors are lazy, 229230, 243 prosecutors are political, 216-218, 219, 220, 222-223 prosecutors are too close to the police, 230-231 prosecutors do not do justice, 210-216, 219220, 223, 230-231, 238 prosecutors lack autonomy, 218-223 prosecutors lack compassion, 201-206 prosecutors prosecute innocent defendants, 231-233 prosecutors overcharge, 215-216 prosecutors pursue harsh dispositions, 197, 213-214 prosecutors tolerate police misconduct, 227-229 prosecutors want to convict, 197-198, 212-213, 218, 220, 223 punitive prosecutorial mindset, 197-201 unreasonable prosecutorial plea offers, 214-215 young and inexperienced prosecutors, 224-227 Arafat, Ibtihaj, 35 Arnold, John, 6, 9-10n Babbie, Earl, 35, 36 Babcock, Barbara, A., 26, 30, 64, 77, 79, 94, 98,

Index 108, 115n, 119, 135, 136, 140, 146, 163, 264, 271 Baker, Mark, 51 Barak, Gregg, 16, 33n, 197 Bearden v. Georgia, 249 Bellows, Randy, 23, 24, 25, 26, 27-28, 32n, 79, 98, 117, 126, 136, 139, 142, 197, 271 Berg, Bruce L., 38, 46, 48 Berger v. United States Bertaux, Daniel, 40 Black, Hugo, 12-13 Blumberg, Abraham S., 15, 16-17, 18, 22n, 23, 30, 197, 271, 280 Blumberg, Mark, 16, 33n, 197, 278-279 Bogdan, Robert 36, 37, 39-40, 50n Boston, John, 15, 23, 24, 146, 271 Carter, Lief H., 9n, 15, 19, 21, 40, 41, 42, 50, 51, 239, 276, 280, 281 Casper, Jonathan D., 18, 23, 24, 26, 27 Church, Thomas W., Jr., 18, 20, 21, 22n, 27, 271, 280 Claerbaut, David, 138, 271 Clynch, Edward J., 18, 271, 280 Cole, George, 15 Combs, Michael, 3 Cooper, Cary L., 6, 9-10n Corbin, Juliet M., 36-37 Cose, Ellis, 14 Cressey, Donald R., 15, 23, 24, 26, 31-32, 51, 58-59, 69-70, 276

299 Criminal court theories, adversarialism, 11-12, 14, 15, 18-21, 21-22n, 9899, 280-281 organizational theories, 15-21, 29, 30, 32n, 281 radical theories, 33n, 278-280 Critical motivations, 145-270. See also Antiestablishment motivations; Antipolice motivations; Anti-prosecutor motivations; Antijudge motivations; Anti-corrections motivations definition, 145-146 Darrow, Clarence, 14 Decker, Scott H., 5, 6, 7 Dershowitz, Alan M., 14, 26, 32n, 118, 163, 196n, 197, 244n, 245 Deutsch, Paula, 2, 24, 26, 96, 108, 139-140, 271 Dillinger, John, 187 Downie, Leonard, 16, 197 Eckart, Dennis R., 271 Edgley, Charles E., 35 Emmelman, Debra S., 18, 20, 24, 40, 41, 280, 284 Eisenstein, James, 3, 15, 19, 21n, 22n, 23, 25-26, 32n, 41, 52, 69, 70, 84-85, 145-146, 159, 163, 197, 245, 264, 271, 273, 276

300 Faretta v. California, 22n Feeley, Malcolm M., 15, 18, 21-22n, 26, 27, 49, 271 Feige, David, 25, 61, 95, 121, 145, 197 Fifth Amendment, 101, 112113 “Finch, Atticus,” 13-14 Fishman, James J., 51 Fleischer, Mark S., 5 Flemming, Roy B. 15, 21-22n, 24, 41, 70, 84-85, 271, 276 Fonda, Henry, 136 Fourteenth Amendment, 12 Fourth Amendment, 95, 101, 112-113, 193-194, 251, Freedman, Monroe, 27, 271 Friedman, Lawrence M., 271 Garbus, Martin, 14 Gershman, Bennett L., 23 Gibson, James L., 3 Gideon v. Wainwright, 12-13 Gildin, Gary S., 24, 26 Gilligan, Carol, 274 “Going rates,” 15, 19, 69, 70 Goldman, Peter, 16, 30, 271 Goldman, Sheldon , 9n Grounded theory, 36-37 Groves, W. Byron, 5, 16, 33n, 197, 279 Gruhl, John, 3 Guy, Rebecca F., 35 Heilbroner, David, 51, 147148 Heinz, John P., 24, 33n, 69, 91-92n, 271 Hermann, Robert, 15, 23, 24, 146, 271

Index Herrnstein, Richard, 4, 5 Heumann, Milton, 9n, 15, 18, 19, 21, 23, 24, 26, 27, 29, 30, 40, 41, 50, 51, 52, 53, 57, 64, 70, 91n, 271, 275, 276, 280, 282, 283 Hogren, Chuck, 138 Holt, Don, 16, 30, 271 Jack, Rand, 274 Jack, Dana Crowley, 274 Jackson, Samuel L., 14 Jacob, Herbert, 15, 19, 22n, 23, 25-26, 32n, 52, 69, 145, 159, 163, 197, 245, 264, 271, 273, 276 Jacobs, Bruce A., 4, 5, 44 Kahlenberg, Richard D., 145 Kaplan, John, 11-12, 271 Kappeler, Victor E., 16, 33n, 197, 278-279 Karnick, S.T., 22n Katz, Jack, 5-6 Kunen, Joseph S., 15, 23, 24, 26, 27, 28, 30, 32n, 52, 77, 78, 112, 133, 136, 147, 163, 246, 257, 271 Kvale, Steinar, 35, 37-38, 3839, 40, 44, 45, 46, 48, 49-50 Laumann, Edward O., 24, 33n, 69, 91-92n, 271 Law school, 2, 53, 57, 67, 72, 73, 74, 111, 145, 150, 154, 199, 200, 204, 219, 224 Lee, Harper, 14 Legal and constitutional

Index motivations, 93-115 belief in the adversary system, 98-99 conservative philosophy, 112-113 distrust for government, 109-112 fulfilling Constitutional guarantees, 95-98 keeping the system honest, 99-107 legal and constitutional motivations in general, 114-115 protecting society by defending the indigent, 107-109 Levin, Martin, 15, 20, 26, 40, 41, 42, 271 Levine, James P., 24 Lewis, Anthony, 13 Lindquist, Charles A., 18 Lipsky, Michael, 71 Lofland, John, 38, 45, 46, 48, 49, 50n Lofland, Lyn H., 38, 45, 46, 48, 49, 50n Lombardo, Lucien X., 44 Lynch, David, 23, 24, 70 Lynch, Michael J., 5, 16, 33n, 197, 279 Maslow, Abraham, 9-10n “Mason, Perry,” 13, 15, 23, 24, 67, 279 Mather, Lynn M., 15, 18, 19, 24, 26, 27, 33n, 271 McCarthy, Belinda R., 18 McConville, Michael, 23, 271 McDonald, William F., 12, 271 McIntyre, Lisa J., 2, 9n, 16, 19,

301 20, 23, 24, 26-31,32n, 40, 41, 42, 47, 50, 52, 68, 70, 85-87, 91n, 93, 95, 107, 113, 126, 145, 146, 152, 159, 163, 197, 198, 245, 271, 280, 282-283 Mileski, Maureen, 271 Mills, C. Wright, 6-7 Mills, James, 26, 271 Mirsky, Chester L., 23, 271 Montross, William, 138 Motivation, definitions, 5-7, 9-10n, 115n of criminal offenders, 4-5 of practitioners, 5 lack of research on, 2-5, 271-272 My Cousin Vinny, 152 Nardulli, Peter F., 3, 15, 21n, 41, 70, 84-85, 271, 276 Neubauer, David W., 13, 15, 18, 271, 280 “O’Neill, Rosie,” 126 Ogletree, Charles, 5, 7, 23, 24, 70, 115n, 122, 271 Peck, Gregory, 14, 136 Pesci, Joe, 152 Pizzi, William T., 145, 271 Platt, Anthony, 29, 41, 146, 147, 271, 276 Plea bargaining, 1, 2, 3, 15-21, 22n, 25, 28-30, 32n, 57-58, 87, 91n, 96, 103,140, 142, 181182, 198, 214-216, 231-232, 246, 259, 260, 271, 275, 278-

302 280, 282-285 Political motivations, 93-270. See also Altruistic Motivations, AntiEstablishment Motivations, AntiPolice Motivations, Anti-Prosecutor Motivations, AntiJudge Motivations, Anti-Correction Motivations, Legal and Constitutional Motivations definition, 8, 51, 93-95 Politicians, 121, 219, 259-260, 265-266 Pollack, Randi, 29, 41, 146, 147, 271, 276 Potter, Gary W., 16, 33n, 197, 278-279 Powell v. Alabama, 12 Pragmatic motivations, 51-92 ability to practice criminal law, 83-84 ambition to be trial attorney, 53-54 autonomy, 69-71, 91-92n avoiding burdens of private practice, 8588 camaraderie, 79-82 definition, 8, 51, 52 dramatic aspects of trial work, 58-61 egocentric aspects of trial work, 65-66 exhilaration of trial work, 67-68 fixed income and good benefits, 84-86 immediacy of criminal practice, 71-74

Index intellectual challenge of trial work 54-58, interacting with people, 74-76 of prosecutors, 8, 51, 52, 61-63 reasonable hours, 88-90, 92n self-identity as trial attorney, 52-53, 68 thrill of victory, 64-65 variety of tasks , 68-69 voyeurism, 77-78 Public defenders (prior research), administrative stresses, 23-24 as “double agents,” 1, 15, 16-18, 21, 30, 31, 94, 115, 197, 278-281 challenges, 1, 23-33 coping mechanisms, 29, 91n, 282-283 guilty clients, 26-27, 28, 31-32, 281-282 importance of winning, 30-31, 64-65 morally questionable strategies 27-28 popular image,13-14, 3132 relations with clients, 24 role, 11-13 “stigma of ineptitude,” 16, 29-32 work environment, 25-26 Qualitative interviews asymmetrical nature, 38 coding, 46 confidentiality, 46-47 gaining access, 42-43, 50n

303

Index interview guides, 38-39 length, 43-44 location, 43 pre-interview preparation, 48-49 research settings, 41, 50n sample size, 39-41 sampling strategy, 42-43 semi-structured, 38-39 tape recording, 44 transcription, 44-46 versus quantitative approaches, 35-36, 49-50 Quinney, Richard, 16, 33n, 197 Rafter, Nicole Hahn, 14 Reiman, Jeffrey, 16, 33n, 197, 279-280 Reza, Sadiq, 138 Robertson, Ivan T., 6, 9-10n Rossett, Arthur R., 15, 23, 24, 26, 31-32, 51, 58-59, 69-70, 276 St. Francis, 138 Segal, Jeffrey A., 9n Shakespeare, William, 94, 115n Shane, 65 Shapiro, Martin, 11 Shover, Neal, 5 Silberman, Charles, 15, 22n, 29, 30 Single, Eric, 15, 23, 24, 146, 271 Sixth Amendment, 12-13, 22n, 95, 101, 112-113 Skolnick, Jerome, 15, 18, 19, 271, 281 Smith, Abbe, 23, 28, 30, 126, 138, 155, 271

Sopranos, The, 78 Spaeth, Harold J., 9n Spohn, Cassia, 3, 273 Stover, Robert V., 271 Strauss, Anselm, 36-37 Subin, Harry, 27 Sudnow, David, 15, 16, 18, 19, 30, 197, 271, 280 Sutherland, George, 12, 211 Taylor, Steven J., 36, 37, 3940, 50n Thaxton, Rodney, 23, 24, 271 To Kill a Mockingbird, 13-14, 136 Turow, Scott, 57 Twelve Angry Men, 136 Uhlman, Thomas, 3 Ulmer, Jeffrey T., 41, 271 Ulmer, S. Sidney, 9n United States v. Wade, 211 Uphoff, Rodney J., 15, 18, 23, 27, 145 Uviller, H. Richard, 26 Vachss, Alice, 26, 51 Welch, Susan, 3 Wice, Paul, 25, 26, 271 Wilkerson, Glen, 24 Wilson, James Q., 4, 5 Wishman, Seymour, 1-2, 23, 24, 26, 27, 28, 30, 32n, 55-56, 59, 60, 65, 77, 122, 136, 147, 163, 197, 198, 245, 264-265, 271 Worden, Alissa P., 3, 9n Wright, Richard T., 4, 5, 6, 7 Xinos, Constantine, 30